document resume ed 051 542 ea 003 389document resume ed 051 542 ea 003 389 title upsurge and...
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DOCUMENT RESUME
ED 051 542 EA 003 389
TITLE Upsurge and Upheaval in School Law.INSTITUTION National Organization on Legal Problems of
Education, Topeka, Kans.PUB DATE 69NOTE 216p.; Papers presented at National Organization on
Legal Problems of Education annual convention (15th,Cleveland, Ohio, November 18-20, 1969)
AVAILABLE FROM National Organization on Legal Problems ofEaucation, 825 Western, Topeka, Kansas 66606 ($7.50)
EDRS PRICEDESCRIPTORS
IDENTIFIERS
A3STRACT
EDRS Price MF-$0.65 HC-$9.87Activism, Administration, *Civil. Rights, CollectiveNegotiation, Court Cases, Dual Enrollment, Freedomof Speech, *Information Systems, *Legal Aid,Principals, Private Schools, *Racial Integration,*School Law, Supreme Court Litigation, Teachers,Tenure, Urban EducationDue Process
This report compiles papers and panel discussions,on various aspects of school law, that were presented at the 15thannual :OLPE convention. Major presentations include: Terrence E.Hatch, "The Principal's Role in Collective Negotiations"; Philip K.
,Docum2nt-Based Information Systems Responsive to LegalProh,eAs in Education"; Sam Duker, "The Legality of Shared Time";Haskell C. Freedman, "The Legal Rights of Untenured Teachers"; H. C.
Hudgins, Jr., "The Warren Court and the Public Schools4; William T.McKnight, "Racial Integration"; Paul W. Briggs, "A Look at CityAdministration"; William Van Alstyne, "Constitutional Protection ofProtest"; and two presentations by Gregory B. Taylor and Thomas A.Shannon on "The Impact of Legal Aid Programs fo: the Poor on theOperation of Public School Districts in the United States." Alsoincluded is a chronology of civil rights and the schools, north andsouth, black and white. (JF)
cUpsarge and ctjpheavalin
u-N School LawLeN
0U.S. DEPARTMENT Of HEALTH, EDUCATION & WELFARE
tag OFFICE OF EDUCATION;
THIS DOCUMENT HAS SEEN kIPRODUCED EXACTLY AS RECEIVED FROM THE
PERSON Ck ORGANIZATION ORIGINATING IT. POINTS Of VIEW OR OPINIONS
STATED DO NOT NECESSARILY REPRESENT OFFICIAL GITICE OF EDUCATION
POSITION OR POLICY,
O
Published
'I1E NATION' I. ORGANIZATION ON LEGAL. PROBLEMS OF EDUCA1 ION
825 WesP:rn, Topeka, Kansas 66606
A.
TABLC OF CONTENTS
THE PRINCIPAL'S ROLE IN COLL F.CTIVE NEGOTIATIONS Terrance E. Batch
(Ni Utah State University
ir% DOCUMENTBASED INFORMATION SYSTEMS RESPONSIVE TO
v-4 LEGAL PROBLEMS IN EDUCATION Philip K. PieleLr'S University of Oregon
MEMORIAL TO LOYD E. McCANN 31. Chester NclieUniversity of Denier
TRIBUTE TO ROBERT L. ORURY Dr. Rose: M. ShawKent State University
TRIBUTE TO DR. NEWTON EUWARDS Walter L. Iletzt ISsperinte.ident, Ames, Iowa
THE IMPACT OF LEGAL AR; PROGRAMS FOR THE POOR ON THE
Cr'ERATiON OF PUBLIC SCHOOL DISTRICTS IN THE
UNITED STATES Gregory B. Taylor:Ittorney, Cleveland, Ohio
THE IMPACT OF LEGAL AID PROGRAMS FOR THE POOR ON THE
OPERATION OF PUBLIC SCHOOL DISTRICTS IN THE
UNITED STATES Thomas A. ShannonSchools Attorney, San Diego Unified School District and
Legal Counsel, California Association of School Administruto. s
THE LEGALITY OF SHARED TIME Sara Duke,Brooklyn College
THE LF.GAL RIGHTS OF UNTENURED TEACHERS Haskell C. FreedmanMossachutells Teachers Assoesation
THE WARREN COURT AND THE PUBLIC SCHOOLS II. C. Hudgins, Jr.Temple liniver.'ity
2
TABLE OF CONTENTS
RACIAL INTEGRATION William T. McKnightAttorney, Cleveland, Ohio
CIVIL RIGHTS AND THE SCHOOLSNORTH AND SOUTH,BLACK MI) WHITE, A CHRONOLOGY
Robe's J. Simpson, Miami University, OhioGordon Foster, University of Miami, Florida
Joseph L. Mills, Miami University, OhioDean Cheesborough, Miami University, Ohio
/Wan Roman, University of Miami, Cord Gables
A LOOK AT CITY ADMINISTRATION Paul IV BrimsSuperintendent, Cleveland, Ohio
CONSTITUTIONAL PROTECTION OF PROTEST R'illiam Van AlstyneDuke University
TRIBUTE TO LEE 0. GARBER AND EDWARD C. BOLMEIERlii.darn Griffiths, Unitersily of Malmehusetts and
11. C. Hudgins, Jr., Temple University
REFLECTIONS &heard C. Bolmekr and Lee 0. Garber
3
FOREWARD
Humidity hung heavy in the air, and the hot August sun appeared translucent in
the Cleveland smog as Dr. Marion McGhehey, Father Joseph P. Owens, Dr. Roger Shaw
and I gathered at the Hollenden House to go over final plans for the 15th Annual
NOLPE Convention.
Father Owens, Program Chairman with Professor Roger Shaw, immediately took
us in tow, and we proceeded to talk with the hotel management. The heavy sigh of
dismay and disillusionment appeared when we learned that there was a conflict in
dates-a conflict with another convention bigger than ours. Father Owens argued
enthusiastically and persuasively that "he had reserved the hotel six months ago and
was assured everything was firm." The hotel management remained unmoved and a
hasty decision by those of us present dissolved the dilemma by moving the NOLPE
Convention to a week later. Multitudinous "tunes" raced through my mind. Was this
a prelude of things to come? Was a cloud coming over the NOLPE Convention? After
months of hard work and planningthree at the national levelwould the whole pro-
gram be snafued?
In the quiet of the Hollenden House hospitality suite, Father Owens and Pro-
fessor Shaw began to detail the final physical and program plans: 1) The hotel was
relatively new and beautiful Cleveland's finest; 2) t here were many succulent delica-
cies in the kitchen, and Marion McGhehey would plan the menus; 31 the program
literally sparkled with excellent speakers, dialoguing sessions, and special interest
groups; and, 41 there was every indication of good attendance. My thoughts of disaster
disappeared. Good food, good house, good program, good attendance-what more could
a convention want?
The 15th Annual NOLPE Convention "birthed" and my fondest expectations
were exceeded. Terrence E. Hatch, William T. Knight, Paul W. Briggs, William Vzn Al.
styne and others gave wonderful presentations. Edward C. Bolmeier and Lee 0. Garber
"stole the show" with their reminiscing of "Upsurge and Upheaval-Thirty Years of
School Law" at the banquet on Friday night.
4
r.
As NOLPE's President, I was privileged to preside cver the 1039 Convention. I am
now equally privileged to write the Foreword to this outstanding publication, UPSURGE
AND UPHEAVAL IN SCHOOL LAW. By the way, the Convention theme and subse-
quent title of this publication is the brain work of Father Owens. This publication is
destined to become an important edition to the ever-growing list of publications in
school law. I am delighted to reccmmend it to our NOLPE membership and others
whose interest in school law dictates serious commitment to scholarly, informative
and well-written publications.
My hearfelt thanks and appreciation are extended to the distinguished Father
Joseph P. Owens and the able and scholarly Professor Roger Shaw. Father Owens
and Professor Shaw not only made the total program arrangements but sweated with
me the final appearance of all scheduled speakers, panelists, presiders, exhibi,or.,
weather, and airline schedules. I am equally indebted to Dr. Marion McGhehey, Execui
tive Secretary of NOLPE, for steering roe through a good year, raying the bills, look-
ing after endless convention e.tel operatiowldetails, and putting this manuscript to-
gether. My fondest appreciation is reserved for Mrs. Mary Shaw and her associates for
the hospitality extended to the wives present. NOLPE is indeed blessed with many
able, talented, and wonderful people.
Joseph E. Bryson, President
National Orkonization on Legal
Problems of Education
The University of North Carolina
at Greensboro
Greensboro, North Carolina
ii
THE PRINCIPAL'S ROLE IN COLLECTIVE NEGOTIATIONS
by
Terrance E. Hatch
Department of School Administration
Utah State University, Logan
The role of the principal in collective bargaining is very difficult to ;le-fine in
legal terms. Rezny's N01,14: book, The Law and the School Principal says eery little
on the principal's legal authority and responsibility in staff personnel administration.
"here is prectically no legislated law specific to the principalship. Itasicaily the prin.
cipal's sphere of orration i3 defined in school board policy or else delegated to him
by the superintendent. Much of his authority grows out of and is legitimatized of the
exigencies of school operation; thus it might be classified as common law. llis role in
collective negotiation is emerging largely in this manner. In a recent publication,
Campbell makes this observation:
As organized teachers go directly to boards of education with
their grievances, the authority of superintendents and princi-
pal.; appear to be reduced. At the same time the increasing
complexities in school 'peration put lay boards at a disadvan
tage eir-air their administrative staffs. The administrators
are often better informed on important issues and they possess
the expertise required to make many educational decisions. In
any event, policymaking is in a stale of flux, and societal
forces are altering local policy deliberations in significant
ways.'
1
6
UPSURGE AND UPHEAVAL IN SCHOOL LAW
At the Milwaukee Meeting, Professor Arthur A. Rezny talked on the role of the
Administrator in Professional Negotiatioio which, though generally applicable to all
administrators, applied chiefly to the role of the Superintendent of Schools. Ile said:
The superintendent of schools as the general a?ministrative
officer is at once a state and local office. He is legally and
technically the executive officer of the Board of Education.
It is at this moment that much of our trouble begins because
many superintendents see themselves and many of the faculty
immediately see him simply as an employee of the board of
education without much relationship to the faculty. If our
major purpose is instruction or learning, then the superin-
tendent's major concern is the development of this major ob.
jective. It seems more appropriate that the board of education
look upon him as their education advisor rather than the ex.
ccutive officer of the board?
According to Rezny, the superintendent was not to be the elle( negotiator for
the board of education but to serve as the "educational leader" who would provide
information which brings about understanding during the negotiations process. Thus
he plays s dynamic functional role as a purveyor of information. To what extent the
ideal role depicted by Arthur is being carried out throughout the U. S. is piohle.
malice!. My observation is that he is becoming more and more aligned directly with
the school board in negotiation usually as the chief negotiator except in large school
systems where an associate Superintendent or administrative assistant performs the
role.
There is much evidence today that many Superintendents, Boards of Education,
And Principais themselves place the principal in the category of being strictly a "board
man." It may have been, or will be inevitable for the superintendent to become the
board's man in negotiations, but I think it entirely possible that the principal need not
2
7
COLLECTIVE NEGOTIATIONS
serve this same role. Most boards of education and superintendents are unsophisti
cated in dealing with teacher militancy and the bargaining process, thus tend to want
the principal to take a polarized stand with the board it negotiations and in adrrinis-
tering the contract. I know of caste where the board has expected the principal "ta
nail the teachers hide to the wall" by a rigid legalistic interpretation of the "master
agreement and then wonder why there is much grumbling and grievances brought by
teachers against management.
Some preliminary findings from some research being convected by the author
suggests that teachers, superintendents and board members expect the principal to
give let.dership in:
I. Looking out for the welfare (health, safety, social and educational develop-
ment) of each child.
2. The recruitment, selection, assigument, inservice education and evaluation
of staff.
3. Determining the curricuium, selecting learning experiences and supervising
instruction.
4. Dealing directly 'tan parents and other pAtroi-s of the school on school
matters.
5. Managing the school.
If he is to perform his leadership role.in the major areas of responsibility he
must be given authority ( which hopefully he will share with staff) and be involved in
the processes iyhere decisiohs are made which affect school operation.
It is generally felt by principals throughout the country that they have been left
out in the negotiations proem, but are then expected to implement matters agreed to,
often under unrealistic if not impossil condition.. Recently the leachers in a large
school system in Utah negotiated a Outyfree lunch period for all teachers and the
board of education provided only one paraprofessional to supervise BOO students. In
another district the teachers negotiated an agreement which provided for a formal
3
UPSURGE AND UPHEAVAL IN SCHOOL LAW
grievance procedure with the principals responsible for administering the 1st phase.
Again not one principal was invoked in the formulation of the content cf the master
agreement or the development of the grievance procedure gitn orienteion on its
administration. Under these conditions the principal tends to be intimidated by the
grievance process, lle is subject to the abuse of teachers who are frustrated by con-
ditions which m ty be ..,irelated to the immediate school situation, yet his effective-
ness is likely to be judged by the number of grievances which originate in his school.
Another plree where the principal is subject to abuse relates to the role he is ,x
peeled to play during a strike. For example, in Utah the School Board Association ob-
jected to this policy statement on impasse situations which was developed by the
principals' association and v.. as approved by the Utah Educational Association.
Because the quality of any educational program is dependent
largely upon the quality of instruction, the principal will as-
sign professional duties to professional staff only; but may as-
sign nonprofessional duties to non-professional personnel in
the interest of the safety and welfare of students.
They tried to get the principals to agree to this statement: 'Further the princi-
pal is reponsible for the operation of his school regardless of the impediments caused
by withholding of services, sanctions, etc. . . she School Boards Committee later
modified the statement to read as follows:
They (the Principals) will endeavor to carry out directives of
the superintendent as he follows the desires of the board, and
that in the event that they .nAot in good conscience execute
with v-Igor a board policy they should, as all employees of any
organisation when such a personal conflict exists, offer their
resignation.
4
9
COLLECTIVE NEGOTIATIONS
The implications of these statements are obvious,. The Principal is expected to
be the handmaiden of the school board regardless of the irrationality of its action.
A sub- committee of the Utah Legislature is currently' attempting to write negot-
iation legislation which is acceptable to the profession and the Utah School Boards
Association. One of the big hang-ups right now deals with the personnel positions to
he covered by the bill. The school board association wants to have only classro, m
teachers covered, thus under the law principals and ether administrative al super-
visory personnel would not have a right to represent themselves in negotiations with
the board of education or be represented in the teachei. unit. The principals are now
;Aim: to he heard and hopefully are kiing listened to by the group de% 110ping the log-
isktion. It is most significant, however, to note that there are repri sent atives of the
Ptah Educational Association, the Society of Superinti ndents and the School Boards
Association on the committee, but not one from either the elementary or secondary
principals' a.soi iations.
So much for some general background of the problem, and excuse me for using
examples from a state which is small and unsophisticaLid in the inter-human relation-
ships of the bargaining process. let, at least from the s!andpoint (,f the principal. the
problems referred to above are not uncommon to schoui district sub - systems in many
other states.
The Principal and Negotiations Legislation
Principals have not been adequately involved and consulted when legislation
covering negotiations has been written. There is evidence on this in Minnesota %tare
the state principals' association asked to have legislation rewritten to provide for
(among other thing) a separate bargaining unit for principals and other non teaching
personnel. The association argues this way:
The secondary school prir .ipal finds his position tinder this law to be quite tin
S
1n
UPSURGE AND UPHEAVAL IN SCHOOL LAW
tenable. The law must le changed so that the teacher cannot negotiate for the
principal. The reasons for this are:
1) It is bad business to have a supervisor) employee in a situation
where his salary and working conditions are controlled by the per.
sonnel that he is charged with employing, recommending for dis
missal, discipline, and in general, supervising.
2) The principal must be the consultant to the board of education
when teachrs are negotiating district policy, operational proce-
&re*, disciplinary procedures, and curriculum. Unless the princi-
pal serves the board in this capacity, there is no other person in the
negotiating area that has a thorough knowledge of the operation of
the school building. (The superintendents job is now such that it is
impossible for him to have this close contact with the operation of
his district.)
3) The principal is the individual who, in the final analysis, must im-
plement and enforce the agreement between the board of education
and the teacher unit.
4) Grievance procedures arc becoming a pert of teacher-boar,i agree-
ments. The principal is the first level of appeal in a grievance pro-
cedure.
5) The principal is held accountable by his superintendent, borrd of
education, and community for the total operstior of his building
and the proem of education therein. Consequently he must be
able to participate in the discussions with the teacher:.
6) Experience in other states and in Minnesota indicates that future
6
COLLECTIVE NEGOTIATIONS
negotiations will be concentrated upon operational procedures, stu
dent discipline, curriculum, and other items not economic in
nature.3
There has been need for clarification of a Michigan law. The California Winton
Act has also come under strong attack on the issue of administrator representation,
and there is some strong feeling that the law should be changed.
Principal's Involvement in the Bargaining Process
Principals have not been consulted during bargaining sessions when teacher wel-
fare and working conditions which affect school operation have been negotiated.
Teachers and Boards of Education have negotiated all of the following items withen;.
Principals being represented: separate teacher facilities such as: lunch rooms, rest,
room, and lounges; class size; length of school day, substitute teacher policies; student
assignment to dames; discipline procedures; number and length of staff meetin,
supenision of extra-curricular activities and other non-teaching duties such as: bus
loading, school lunch supervision.
These are all vital areas with which the principal is concerned and for which he
is accountable. There is a saying that the "cow soon forgets when she was a ca?f," I
think this might be paraphrased to apply to the Fuperintendeht and othei central of-
fice staff when negotiating items affecting school operations w her they haven't ad-
ministered at the building level for some years. There are also many central office
personnel making decisions concerning the operation of schools who have never been
in an elementary or secondary school since they attended as students. The teacher,
by the very nature of hie assignment tends to have tunnel vision regarding the school
operation. One of Webster& definitions of a tunnel is: "a broadmouthed net 3r snare
for game having a pipelike extension that narrows at the end." Not used much a.,
more for catching game but revived by teachers for catching the unwary principal.
Successful principals must have peripheral vision, that is, be able to see things in
12
UPSURGE !-17,i0 UPHEAVAL IN SCHOOL LAW
their broad aspects, know the inner working parts, relate the isolated segments, and
make them into a working Nhole. To not involve principals in the vital process of
negotiating working conditions is risky business. Not only is a wealth of sound wis-
dom neglected but the matter of reaching an agreement which can be implemented
and administered is diminished.
What negotiations role is the principal to be cast in if he is to he heard and per-
form his role well? There is not complete agreement on this matter in the profession.
In many states the principals can't agree among themselves, nor do teachers groups,
superintendents, or boards of education agree. Perhaps several models will be used for
some time. During the initial years when teachers were asking for formal negotiations,
principals tended to want to remain neutral and not get involved in the bargaining
process. However, when they saw that their welfare was being jeopardized and pre-
rogatives which were once theirs being ngotieted away, they discovered that they had
to b involved.
Representation in Teachers Bargaining Unit. Principals in many system:, ere
OM represented by the teachers' organizations and often serve on the teacher's bar.
gaining team which negotiates with the Beard of Education. The logic of this pattern
is discussed in a New York State Public Employ n ent Relations Board ruling in July,
1968, on a dispute concerning whether the principals could be represented in bar.
gaining by the Depew Teachers shganiza Lion. Th.-! Board of Education of Union I ree
District Numbcr 7, mainta;,id that because the principal must manage pupil and
teacher evaluations, well as teacher assignment end retention there was a cootlict of
interest and that the principal must be regarded as a part of management in as much as
principals are our "...right ann...eyes and ears..." The teachers' association on the oilier
hand, with the sopport of the principals, maintained that there was a substantiaI com-
munity of interest which was marked by cooperation and consultation rather than by
disciplinary authority and that the aims of tote cd mational objectives of the principal
coincide with those of the teachers. The Public Employment Relations Beard sum-
marizes the rationale for its decision which is well worth reading by those interested in
COLLECTIVE NEGOTIATIONS
this subject and then affirmed that:
Accordingly, the broad community of interest shared by the
teachers and principals in such matters as their basic mission,
the substantial similar method of salary determination, and
common fringe benefits, mandates the creation of a single
negotiation unit.4
Representation on the Boards Bargaining Team. The second way the principals
can be represented in negotiations is by being a member of the negotiations team
representing the bard of education. In Salt Lake City, one elementary and one
secondary principal are on the Board's team. Incidentally, the superintendent is not on
the team. The chairman and spokesman for the team is the Director of Teacher Per-
sonnel. This plan has been in operation for two years. The principals v.ho sened on
team ha'e felt their position in the school was not jeopardized by sening in this capa-
city. Negotiations went smoothly in the spring of 1968, but were much rougher in
1969, when mone was tighter. The principals became Tanned when the teai hers sug-
gested reducing the number of administrative positions in the secondary schools and
cutting other senices. They are not quite so sure they can continue to F c n e on the
Board's team.
Serving as consultant, to i' board. The Minnesota Association of Secondary
School Principals have recommended Ilvd principals not sane on the confrontation
team and absolutely should rot when teacher's Ea14.6,1s are being negotiated. The
reasoning is that this would jeopardirt the good working relationship between the
principals and the teachers. In Michigan where the principals have been pushing for
what is call.: the adoption of the "Management Team Concept" tie Elementary. and
Seccndary Principals Association developed a guideline statement which says that the
principal must sene in an advisory capacit:. during negotiations representing manage-
ment and that they may serve on the board's negotiations team at the discretion the
Board of Edu:aion.5 Iloweser, in a team management agr emsnt entered into by the
9
: 14
UPSURGE AND UPHEAVAL IN SCHOOL LAW
Dearborn 8 Board of Education and the adminisirators'association in article IV section
E it was agreed:
...that no member of the Association employed as a prim,
pal or assistant principal shall represent the Board in any ne
gotiating or collective bargaining session with representatives
of any other bargaining agent. Such agreement will not hinder
the participation of the principals and assistant principals as
consultants to the Boards bargaining tram .6
Superintendent Donovan of New York points up that the N.E.A. appears to becoming
a classroom teacher's organization and says:
If it is, unfortunately, the very nature of this makes it diffi
cult for supervisors and teachers to be together in the same
organization when negotiations is a big process. We are all in
an educational business; we should be theoretically together.
That is one of the reasons why I will not allow principals at
the bargaining table. I sit at the bargaining table with my
deputy superintendents. In another room I have the princ
pals and others who advise me as to how far I can go and what
it will do to their schools. They do not sit at the table because
I do not want a confrontation between the men who are going
to have to work out the problems in the schools and the teach-
er who are making the demands in that particular school!
The first official statement made by the National Association of Secondary
School Principals (NASSP) concerning the principal's role in negotiations was writ.
ten by Benjamin Epstein in 1965. In this publication Epstein emphasized that the
principal must be involved but wasn't too specifi concerning his role except that h
felt the principal could be on the negotiations team representing the Board of
10
15
COLLECTIVE NEGOTIATIONS
Education in small districts while principals may' find it necessary to organize strong
negotiating units of their own in cooperation with other administrators and supunisors
in large systems .8
Since the principal is expected to have and should have a very close working re-
lationship with the staff, the general feeling rmong them is that the interests of edu-
cation would best be served if they serve in a consultive capacity wiwn the teachers
agreement is being negotiated, rather than as a member of the board's or teacher's con-
frontation team. Though this is a preferred role, there is very little written on how the
principal will serve in this capacity. Will he be a consultant only when called by the
board's team, when the principals request representation or in some other way. Some
principal's groups are asking that one principal be present during all negotiations sea
Lions in a non-official capacity to observe, to give opinion? when asked, and to carry
information to the principal's organization.
Each year fewer principals are included in the bargaining unit represented !.y
teachers and even fewer are members of teacher confrontation teams. Principals in
greater number,' are serving on school board's teams and principals are more aggressixe
ly asking to be consulted on issues affecting school operation. It may be too eviAy to
suggest any one model as best sening the interest of principals more effectively than
others. The most important matter seems to be that 114 expertise be u-ed in the bar
pining process.
The Principal's role in the Grievance Process
The principal is the key administrator in "Taking the grief out of the grievance,"
to borrow s catching title from a N.E.A. pamphlet. The NASSP and all Male princi
pd's associations recognize that the principal shcald be the person to whom the grie
sance is brought b) the staff assigned to his school. The general sequence in which the
principal is involved as suggested jointly by the California School Boards Association
and the California Association of School Administrators9 and by Luta et. eL,10
UPSURGE AND UPHEAVAL IN SCHOOL LAW
follows. First, as the teachers immediate superior he is charged with meeting the agriev-
ed person informally and resolving the problem (problem ased here to mean not a for.
malized or institutionalized grievance). Every reasonable effort should be made to set-
tle complaints by consultation, personal conference and other administrative tech-
niques during this stage. Actually the most successful principals have always handled
grievances in that manner and it should be a requirement that this avenue to be per-
sued before resorting to the adjudicatory process.
Adjudication begins with formal step 1, in which most grievance procedures)
the principal is st111 the person to whom the formal grievance is brought. At this level
the grievance must be submitted in writing and should have been reviewed by the
grievance review committee of the teacher's organization. This committee hopefully,
would screen out all unjustified grievances. During this phase it is the Principal's re-
sponsibility to meet with the teacher and his representative. Ile sh )uld also have the
light to have a witness or witnesses present.
Ideally, it would he hoped that the grievance would be settled al the informal
stage, tut if not, certainly at stage one. This may be an unrealistic assumpti -in because
it is based on the notion that most of the grievances stein from interpersonal relation-
ships occuring at the building level. Close analysis of many grievance situations reveals
the souret of the injustice, supposed or real, originates in 11.e central administration or
with the Hoard of Lducatic,n. If this is the case the Principal is caught in the middle,
particularly so, if he is carded to implement and administer policies and procedures
arrived at without his participation. Surely his skill in initiating and maintaining a cli-
mate in his school which will foster good interpersonal relationship with the staff will
be tested at this point. Such a climate will reduce the incidence and in the event "pro-
blems" do arise facilitate their resolution.
If the grievance is not solved at level I, the principal judgment is placed in the
hands of the hierarchical structure. designed foe resolving the grievance in the stweccd
ing phases of the grievance process. If the principal is to be }protected, he must be
12
COLLECTIVE NEGOTIATION'S
allowed to be present, present documents, bring witnesses, and have counsel, thr same
as the agrieved person. Otherwise he is apt to make concessions at level I which should
not be made, and which in the long run will create even more problems.
Principal's Role During a Strike
The principal's role during a strike can be handled very quickly. lie has an obli-
gation to maintain the school in a "safe and ready" condition for the beginning or re-
sumption of school. This role is demanded by the practical aspects of the situation
and school boards should insist on it. Generally, teachers recognize the need and do
not object to this role. The difficulty arises when school boards insist on running
schools with volunteers and substitutes. Often this is done without the board under
standing all the implication of sue's salon. In a situation where boards take the atti-
tude of opening the schools "come hell or high water" the legal implications from the
standpoint of pupil safety have many ramifications ar.d the principal is placed on the
spot." It would seem wise for some guidelines on strikes to be developed jointly by
the principals and the central ofliet and approved by the board in advance, when the
atmosphere is calm.
These guidelires should give the principal some prerogatives in dismissing school
when in his judgment such action is necessary. Obviously the responsible person in
the central office should be readi'y available to give counsel at such times. Thomas
Shannon gave this sound advice to E tah principals regarding this matter:
The principal has the most critical role of any member of the
school district's management team during an emploiee strike,
and this function dy-s not come into focus until after the
strike is concluded. This line lion is to "pick up the pieces and
make things whole again." Ile further oi.sersed that a strike
leases ugly Scars, the staff is split, parents and other members
of the public are aliens teas student discipline is loosened and
13
UPSURGE AND UPHEAVAL IN SCHOOL LAW
the board is seen in an adversary posture to school district em-
ployees.
After the strike the principal is in the best iosition to p things together and
smolth over the wounds provided he has as Shannon says 'walked the edge of the
cliff'. Even though he has been involved in the bargaining process as a member of the
management team he must: 1) leave bargaining at the bargaining table. 2) not ex
press antagonistic views around the staff at school. 3) avoid making public pro-
nouncement regarding the functioning of the school and his point.of.vicw on the
issues. and 4) avoid confronting pickets. 5) his every action and decision should be
based on the idea that soon the strike will be over, thus he is prepared to move quickly
to recreate from the chaos a sound staff and community relationship.
Concluding Statement
In conclurion it is well to remember that: 1) the principal operates from a base
which is not legally legislated, and one which is somewhat powerless, 2) that he has
been stripped of much of his leadership role by the central administration and 3) that
he is somewhat removed from the decision making center of school operation and
therefore is severely handicapped in becoming actively involved in the bargaining pro-
cess. As hunts points out:
This "leadership" role, in the light of the reality of the distri-
bution of power among the teachers, school boards, and su-
perintendents, and the Prescribed role of the principal in the
school bureaucracy, is an unrealistic one. Many teachers
realize that although their building principal functions in the
formal organization as the communication link in the line be.
tween themselves and the central administration, they can
more readily achieve their goals via the informal communica-
tion channels maintained among teacher organisation leaders,
14
COLLECTIVE NEGOTIATIONS
chief administrators, and board members. This is espec-
ially true in school districts where in their rush to mollify
teacher militancy, superintendents maintain an "open door
and hoard members an "open telephone iine." In situations
where blatant dysfunction of the formal organization exists,
teacl ers perceive of the principal as being in a position to pro-
vide )nly tentative decisions pending approval of the highups,
at best. Where such relationships exist, teachers soon firid it
more fruitful to bypass the principal completely, or out ca
consideration for the 'Good Joe' principal, engage in a mock
and/or courteous interaction.'
the prin6pal is to retain whatever leadership position he has today and gain
the stature often prescribed to him as the "educational leaders" of his fact. ), he will
have to be in the foref.ont (as a member of the management team) of recommending
and pushing for many of the improvements in the teaching-learning environment
which teachers are legitimately asking for today. However, his main source of strength
will come from the quality of the leadership he provides the school for as Cunningham
suggests:
The ability of the principal to sunivo and flourish du.ing and
after dm: transition period will depend on his capacity to re
spond and adapt to new circumstances. Since genuine partic-
ipation of the principal in teacher negotiations seems an T.e .
likely prospect, it will be the individual building principal who
has kept his fences mended in he important area of principal.
staff interaction, ant, thus, has won the respect of his teachers
who aril ultimately prevail. The administrator who has drawn
his authority from the nature of his office, rather than from
personal and professional sources, will not survive the change
in the authority struchre."
15
2-0
FOOTN3TES
1 Campbell, Roald F. and Layton, Donald 11. Policy Nlakirrit for American EdutatilChicago: slidwcst Administration Center, The University of Chicago 1969, p. 19.
2 Renzy, Arthur A. The Role of the School Administrator in Professional Negotiations.(Mimeographed) Milwaukee: Uniyersity of Wisconsin Department of .":v hoot Administration(Undated) p. C-8.
3 Minnesota Association of Secondary School Principals: The Secondary School Principaland the Mett and Confer Law. (Alimeographed)Minneapolis: The Association (undated) pp. 1 R 2.
4 N.E.A. Negotiations Research Digu41 (October, 1968) p. C-16.
Michigan Association of Ele.nentary School Principals and Michigan Association ofSecondary School Principals, Guidelines for Michigan Principals. Ann Arbor, The Association;1968. 1. 28.
6 N.E.A. Negotiations Research Digest (February, 1969) p. D-3.
Donovan, Bernard. "New York CityWorkshop for Teachers Militancy" in Carlton, P Wand Goodwin, 11.1. (Editors) The Collective Negotiations Iiilemma.Worthinglon, Ohio: (31. A.Jones Pub. Co. 1969, p. 141.
8 T:pstern, Benjamin. Th. Principa.". Role in Collective Negotiations. Washington, D.C.:Natio..al Association of Secondary School Principals. 1965, p. 5.
California School Boards Association and California Association of School Adminis-trctors, Employer Grievance Procedures. Burlingame: The Associations, 1968.
10 Luntz., Frank W. et. al. Criesances and Their Resolution. Danville: The InterstatePrinters, 1957, p. 71.
II 1.untr, p. cit., p. 82.
12 Cunningham, Tame L "Colfectise Negotiations and the Principalship" In Cadton,et. al., op. cit. p. 259.
; 21
1
DOCUMENTBASED INFORMATION SYSTEMS
RESPONSIVE TO LEGAL PROBLEMS IN EDUCATION
by
Philip K. Pie le
ERIC Clearinghouse on
Educational Administratior.
University of Oregon
I am indeed honored to be invited to addre, this gathering of educators and
lawyers concerned with legal problems in education. The focus of my presentation
today vat be docurnentbased information systems responsive to these problems. I
emphasize the words documentbased and education because I do not intend to dis-
cuss commercial computerized legal research services extant in a number of States,
such as the Legal Citation Service in New York or the Law Research of Californiaa
corporation engaged in providing specialized computerized legal research services to
attorneys; nor do I intend to discuss the variety of rOrieval systems for legal informs.
lion such as Project LITE (LAO Information Through Electronics) at the Air Force
Center in Denser or the Department of Justice "LEX" System.
There exists today a rapidly growing information network for dissemination of
research and research-related materials in education. The network in its present
form is composed of a loosely organized group of documentbased information
systeMs invoked in the business of information aalysis and dissemination. At the
present lime, there are three document-based information systems either directly or in
directly involved in collecting, analyzing, and disseminating information related to
legal 1- roblems in education: School Reseamb Information Service (SKIS), Direct Ac
17
: 22
UPSURGE AND UPHEAVAL IN SCHOOL LAW
cess to Research Information ( DATRIX), and Educational Resources Information Cen
ter (ERIC), particularly the ERIC Clearinghouse on Educational Administration. By
far the most ambitious and comprehensive of these three systems is ERIC. But before
I discuss the operation aid services of the ERIC system, I will briefly describe the ser-
irices provided by SKIS and DATRIX.
School Research Informatioo Service (SRIS)
Phi Delta Kappa began SRIS in September, 1967, with the aid of a Kettering
Foundation Grant. The service's purpose is to communicate among the educational
community information gained through research and innovative practices. On request,
SRIS will provide abstracts and complete texts of research reports on most educational
topics, including information related to schoJI law. Documents cost 25 cents per
microfiche or 10 cents per page in paper copy. Since SRIS in some ways duplicatei
services offered by ERIC, inquiries addressed to SRIS will be answered with relevant
SRIS documents and a list of relevant ERIC documents. Address requests to SRIS,
PM Delta Kappa, Research Service Center, 8th and Union, Bloomington, Indiana
47401 or telephone (811) 339-1156.
Direct Access to Research Information (DATRIX)
DATRIX was inaugurated 'n the summer of 1967 by University ;Microfilms, a
Xercx subsidiary. DATRIX supplies reproductions of any of the more than 126,000
doctoral dissertations which University Microfilms has stored on microfilm since 1938.
Users of DATRIX must write for a free copy of Key Word Lists in the desired
broad subject field ("Chemistry/Life Sciences," "Engineering/Physical Sciences," and
"Humanities/Social Sciences"). The user selects from the list one or more words that
define the topic he wishes to be searched. DATRIX's computer then searches the file
of dissertations and its those relevant to the specified topic. For the first 10 biblio
graphic references listed, the user pays 85.00; 10 cents for each additional reference.
18
:
LEGAL PROBLEMS
Complete copies of the dissertations can be purchased either in microfilm (1.1/4 cents
per page, $3 minimum) or in paper copy reproduced xerographically from microfilm
(4-1/2 cents per page, $3 minimum).
University 'Microfilms since 1938 has published Dissertation Abstracts, a month.
ly cumulation of abstracts of recently completed dissertations. Each reference pro-
duced by the computer search includes a citation of the volume and page number in
Dissertation Abstracts where the user may locate the di..-ertation's abstract, before
ordering its complete tcst. DATI1X's computer search thus performs for the research-
er the task of searching all 28 volumes of Dissertation Abstracts to compile a biblio-
graphy of relevant dissertations. Write to University Microfilms, Library Senices,
Xerox Education, Ann Arbor, Michigan 48106.
ERIC -- The Educational. Resources Information Center
Created in 1965 by the O.S. Office of Education, ERIC is the most ambitious
and comprehensive program currently underway to supply the entire educational com-
munity with educational research resul's and other resource information. Through
ERIC, any educator or educational institution can obtain selected research, develop-
ment, and innovative reports on almost ev,..try educational subject.
Although ERIC is a nationwide information system using highly sophisticated in-
formation processing techniques, it is also decentralized. ERIC consists of four major
in tarrela ted comps vents:
1) Central ERIC. The headquarters staff in the Office of
Education coordinates the system and formulates overall
policy for its development.
2) The network of 19 clearinghoufts. Each clearinghouse,
spreializing in one area of education, processes
19
24
UPSURGE AND UPHEAVAL IN SCHOOL LAW
documents for announcement in Research in Education
(RIE), ERIC'S monthly index and abstract catalog, and
conducts information analysis activities.
3) An ERIC Facility which merges onto magnetic tape
document data Eupptied by the clearinghouses for RIE.
The Facility, currently operated under cc::,*.ract by the
North American Rockwell Corp., also provides com-
puter, lexicographic, and technical services
4) The ERIC Document Reproduction Service (EDRS),
operated under contract by The National Cash Register
Company, sells microfiche and palm copy reproductions
of documents cited in RIE.
The catalog Research in Education is the principal means by which user; of
ERIC gain access to its tot of documents. Currently, each :ss.ne lists nearly 1,000
documents processed by the clearinghouses during a previous month. The resume for
each document includes the bibliographic information, abstract, index terms, and
availability notice. If the document is available from EDRS, it can be ordered by its
accession number at the prices cited in the resume. If it is not available Iron EDRS,
an alternative source is given. A separate section of RIE contains abstracts and indexes
of ongoing research projects supported through USOE's National Cr nter for Educa
tional Research and Development. RIE's indexessubject, author, and inst.tutional
sourceare e.so published in semiannual and annual cumulations. HIE i available in
many libraries and by subscription for $21 a year from the U. S. Government Printing
Office, Washington, D. C. 20102.
An increasing number of school districts are purchasing ERIC microfiche for
the r libraries _nd resource centers. Microfiche is a :heel of film which contains micro-
images of up to 60 pages of text refanged in rows, including an eye-legible heading for
20
25
LEGAL PROBLEMS
the document's number, title, author, source, and other basic information. Microfiche
comes in several sizes, although most, including all ERIC microfiche, are reproduced to
conform to the international standard of 105 by 148 mm. (spproxirnat.ly 4 by 6
inches). The main advantage of microfiche as opposed to paper copy is economy,
which is realized both in initial investment and storage. The complete ERIC collection
as of October 1968, for example, can be purchased in microfiche for 52,205, whereas
the same collection in paper copy would cost over $50,000. The 26,350 sheets of
microfiche in the collection can be filed in 30 linear feet of drawer space, or one filing
cabinet; the collection in paper copy would occupy almost 600 linear feet of shelf
space. A standing order to receive microfiche of all ERIC documents as they become
available currently costs about $125 per month. Microfiche readers., necessary to en-
large the images for reading, are available from a variety if manufacturers for upwards
of $100.
When ERIC was begun by USOE Li 1965, its library consisted of 1,746 docu-
ments in the Special Collection on the Disadvantaged. Now, with 19 clearinghouses
processing nearly 1,000 dccuments among them each month and after a number of
other special collections have been issued, the volume of documents in the ERIC
system numbers close to 25,000. If ERIC'S usefulness as an information service is to
keep pace with its growing collection of documents, educators must not only be aware
of the .system's product- and services, they must also be properly skilled in their use.
Once the use locates a resean h report in RIE, and, upon reading the abstract,
decides that a copy of the report is worth having, the final step is omplc. He notes the
price of the document add orders it from the ERIC Document Reproduction Senice.
Unfortunately, as many ERIC users have dis-overed, locating reports in RIE is not al
ways an easy task. Most problems arise over s!arching through RIE's subject index.
The absence of eross-refere.:ces and the nonconformity of many index terms to the
"natural language" of the subject area can mcke searching haphazard and inefficient.
Aware of these difficulties, ERIC has published a Thesourut of ERIC Descriptors
21
26
UPSURGE AND 'JPHEAVAL IN SCHOOL LAW
to assist the user in conducting indepth searches. The thesaurus is especially helpful in
discovering all terms that are relevant fur a particular search. Each descriptor in the
main sectica is accompanied by a list of narrower, broader, and related terms that help
to define it, thus enabling the user to narrow or broaden his search by choosing a new
set of terms. Synonyms and near-synonyms of descriptors are also listed, with cross-
re ferences directing the user to appropriate descriptors equivalent to his own language.
Location of compound descriptors is further facilitated by a Rotated Descriptor
Display. In this section, multiword descriptors are rotated and filed under each word.
For example, "school law" is filed under bosh "school" and "law". Any multiword
descriptor can thus be located if only one key word in the descriptor is known. The
rotated display also reveals all related descriptors filed under each of its component
words.
In addition to RIE, the subject indexes for each of the special document collect-
ions also conform to the Thesaurus of ERIC Descriptors. Thus, for any thorough
searching of the ERIC systemwhethr for documents processed by the clearinghouses
or for documents in such collections as the Disadvantaged, Historical, PACE, or Man-
powerthe thesaurus is a practical and necessary tool. A new edition of the thesaurus
was recently published and is available from the Government Printing Offne for $2 :'d.
In addition to reports announced in RIE, a numbs of special document collect-
ions are available through ERIC. The following collections are of particular interest to
educators at the elementary and secondary levels: (1) Disadvantaged Collection-1,746
documents dealing with the special educational needs of the disadvantaged, (2) Pstor-
ical Collection-1,214 reports on research projects sponsored by USOE from 1956 to
1965, (3) 1966 and 1967 PACE Collectionstwo sets of project proposals from both
planning and operational grants under the ESEA Title III PACE program. Each collect.
ion can be purchased in microfiche from EDRS. Author, subject, and other indexes
for the collections can be ordered from the Government Printing Office.
22
27
LEGAL PROBLEMS
To help educators make better use of the growing number of ERIC products and
reference tools, ERIC has published a guide to its services entitledHow to Use ERIC
This illustrated brochure explains each step the user should take to search for and
order documents from RIE and the special collections. It also cites prices for all of the
ERIC index and abstract publications. A copy can be ordered for 30 cents from the
U. S. Government Printing Office, Washington, D. C. 20402.
In May 1969, ERIC launched a new periodical designed to help educators keep
abreast of current journal literature in education. The Current Index to Journals in
Education (CUE) is a monthly catalog and index of journal and periodical literature in
the field of education. Approximately 190 educational journals were indexed in the
firet issue of CIJE, and an ever broader spectrum of educational literature is planned
for coverage in future issues.
The Current Index' to Journals in Education has been designed as a companion
volume to Research in education, the index and abstract bulletin for report and other
research-related literature. Terms listed in t' .e Thesaurus of ERIC Descriptors are being
used to index entries in both volumes. However, no abstracts of journal articles are be.
ing prepared, no will article reproductions be available from the ERIC system. CUE is
an announcement service only.
CUE contains a main entry section, an author index, a subject index, and an
index to source journals. The journal citations are arranged in the main section accord-
ing to 52 descriptor categories, to facilitate browsing. These mAjor subject groupings
include such terms as administration, communication, curriculum, evaluation, facilities,
finance, government, instruction, race relations, and social sciences.
Cataksing and Indexing of the journals are the responsibility of the 19 clearing.
hooks and the ERIC Facility of North American Rockwell, Inc., whkh processes
those }mends not prism* within the scope of a simile tsarina) Ouse. Information
Sciences, Inc., Is independent wary of Crowell, Collier and Macmillan, was award-
23
:28'
UPSURGE AND UPHEAVAL IN SCHOOL LAW
ed the USOE contract for publishing the index. Information Sciences, Inc., later plans
to publish semiannual and annual in lex cumulations and other special editions which
will be oriented toward subject specialists in the field of education.
Of all the journals that have been .elected for processing, about 90 perc are
educational journals that are being indexed "cover-to-cover," excluding only such
items as book reviews, editorials, letters to the editor, feature colunirs, etc. The re-
maining 10 percent consist mainly of journals in fields related on education; articles in
these journals are being selected on the basis of their relationship to education.
Ten journals have Leen assibmed to this Clearinghouse for indexing, of which the
following are being indexed cover-to-cover: REDS Journal, Administrator's Notebook,
American School Board Journal, Compact, Educational Administration Quarterly, Pis.
tory of Education Quarterly, Journal of Educational Adminbiration, Journal of Edu
cational Data Processing, and Paedagogica Ilitsorica (Belgium). Adrn Mists-arise Science
Quarterly is being indexed selectively. Present plans call for the inclusion of some 50
law journals. These journals will be reviewed regularly and articles dealing with school
law will be indexed on a :,elective basis. We hope to begin the selective indexing of these
law journals by the first of the year.
The regular price for an annual subscription to CUE is $31.00. A single issue
costs $3.50. Prices for the cumulative editions have been established as follows: Serni
annual, $12.50; annual, $24.50; semiannual and annual, $35.00; semiannual and
annual for subscriber, $30.00.
To obtain further information about CUE and to place (Arm, write to CC \I In
formation Sciences, Inc., 886 Third Avenue, New York, New llork 10022.
Clearinghouse on Educational Administration
Complementing the services of the national ERIC network are the more special-
24
LEGAL PROBLEMS
ized services of the ERIC clearinghouses. Each clearinghouse has two primary func-
tions: (1) it acquires, indexes, and abstracts documents for announcement in R1E, and
(2) it publishes newsletters, bibliographies, and interpretive reviews of research studies.
In the field of educational administration, a clearinghouse has been in operation
at the University of Oregon since 19C.I. f he ERIC Clearinghouse on Educational Ad-
ministration (ERIC/CEA) defines its subject area as the leadership, management, and
structure of public and private educational organizations on the elementary and sec-
ondary education levels.
Within the limits or its subject area, ERIC/CEA acquires published and unpub.
lished research reports, books, surveys, bibliographies, instructional materials, oc-
casional rapers, monographs, conference reports, and other materials. Although the
Clearinghouse is particularly interested in acqu:ring "fugitive" materials not widely dis-
tributed by other means, its purpose is to collect and process all information of inter-
est to school administrators, researchers, and professors. Anyone having documents
relevant to ERIC(CEA's subject area should send them in duplicate to Acquisitions
Librarian, ERIC Clearinghouse on Educational Administration, University of Oregon,
Eugene, Oregon 97403.
Since most of the significant documents ERIC/CEA acquires are eventually
announced in RIE and available from H)RS, the Clearinghouse is not equipped to sup.
ply copies of documents in response to individual requests. Therefore, educators nho
%rite to the Clearinghouse for information on subjects in educational administration
are reter:ed to RlE and other sources.
It is the second major function of the Clearinghouse, information analysis, that
makes ERIC/CEA an important resource for school administrators and other persons
interested in educational administration. A variety of bibliographies, newsletters, in-
dexes, literature reviews, and other information analysis products are prepared by
ERIC/CEA for its users.
UPSURGE AND UPHEAVAL IN SCHOOL LAW
Four times s year ERIC/CEA publishes and distributes to persons on its mailing
list a uses service report entitled USER V. USER V announces publications and other
products of the Clearinghouse, lists processed documents that have been announced in
R/E, and contains other information about ERIC and ERIC/CEA services. The Clear-
inghouse also publishes jointly with the Center for the Advanced Study of Educational
Administration a quarterly research bulletin, r & d perspectives. The ERIC/CEA por-
tion of the bulletin features reviews of literature on topics of current interest in educa-
tional administration. Collective regotiations, planning systems in education, and
school-community relations are topics that have L..n reviewed in recent issues. If you
are interested 4. receiving these publications, write to the Clearinghouse and request to
have your name added to the mailing list.
Several bibliographies and research analysis papers are being prepared by the
Clearinghouse on topics related to school law. The following products dealing with this
subject are currently available from the Clearinghouse: Bibliography on School Law
Diner. 19.524968, by to. Chester Nolte; Collective Negotiation, in Education:
A Review of Recent Literature, by Stuart C. Smith; ERIC /CEA Research Review: Col-
lective Negotiations in Education, by Philip K. Piele; Administrator Techniques in Col-
lective Negotiatioru: A Guide to Recent Literature, by Philip K. Piele and John S. Hall;
Selected Bibliography on Student Activism in the Public Schools, by John S. Hall.
These and other special publications produced by ERIC/CEA are processed for even-
tual announcement in RIE and distribueon by EDRS. However, until copies of the
publications are available through EDRS, they can be obtained from the Clearinghouse,
usually free of charge for a single copy. The Clearinghouse will supply on request a
complete list of its publications available from EDRS.
Last year ERIC/CEA published a directory of organisations conducting research
or serviee work in educational administration. The directory listed 102 orpnisationa,
including regional laboratories and research centers funded by USOE, university re-
search and service barons, and independent organisations. It indicated each orgsrdza-
tion's scope of subject yes, service arca, publications, and policy for supplying infor
26
81
LEGAL PROBLEMS
oration in response to requests. This year the directory has been updated and expand
ed to include more than 120 organisations. For the first time, the directory inclue!..s a
new section which lists personnel conducting research in the field. Each researcher's
subject area, institutional affiliation, and publications are cited along with his address
for the 1969.70 academic year. Subject indexes are provided for each section. Copies
of the 1969 edition can be ordered from the Clearinghouse for $2.00 each.
ERIC/CEA will soon publish two state-of-theknowledge papers dealing with
topics related to school law. ?archer Militancy: Implications for Schools is the title of
a paper written by Dr. Richard C. Williams, Assistant Dean, College of Education,
UCLA. Another paper, dealing with the legal aspects of collective negotiations, is cur-
rently being prepared by M. Chester Nolte.
27
32.`
MEMORIAL TO LLOYD E. McCANN
by
M. Chester Nolte
Professor of Education Administration
University of Denver
Lloyd Ellis McCann started his teaching career as a 17-year-old youth in a one-
room rural school in his native Nebraska, and went on to gain national prominence as
an educator, historian, and researcher in the field of school law. His untimely death on
January 21, 1969 at the age of 62 unseasonally deprived the field of education of one
of its most enthusiastic and energetic personalities.
Getting a degree was kot easy for the rising young educator. He taught for nine
years in rural communities near his home while working on his bachelor's degree fom
Nebraska State Teachers' College at Peru. Finally, at the age of 28 he achic.ed this
milestone in his educational climb, and then worked his way up from teacher, to prin-
cipal, and finally superintendent, while working on his master's degree from Colorado
State College at Greeley. Ile served with the United States Army in Europe during
World War II, and was awarded the Bronze Star and the Purple Heart (he was wounded
during General Patton's march through Austria).
Home after 41 months' kreice in Europe, Lloyd was married to Ruth Fern
Erickson in 1946. In 1951, he co7npleted work on his Ed. D. degree from Colorado
State College. Then followed professorships at the University of Arkansas and Butler
University. In 1958, he assumed the chairmanship of the departmmt of school admin
ignition and supenision at the University of Arizona. In 19fit, ite became NOLPE
28
LLOYD E. MCCANN
president, after having served on the L 'ard of directors from 1960 until 1963.
Lloyd's public achievements as well as his love of art, music, and photography
endeared him to all those whom he met. His contagious enthusiasm at d crusty prag
rnatism were balanced by an abiding faith in the worth of the individual, and a corn-
passion that knew no bounds. His was a rich life and full, because he was doing what
he wanted most to do, and that was to teach.
No clearer expression of Lloyd McCann's influence on his students can be found
than a short tribute which appeared in a Tucson newspaper shortly after his death. The
editorial, written by a professor who knew him is entitled SOCIETY IS Tit: POORER.
I would like to share it with you arbaiim because its language ',presses E13 vividly the
&s.ser ce of the life of Lloyd McCann.
SOCIETY IS THE POORER
A teacher's wealth is not money. It is the lives he has in-
fluenced. Last week one of Tucson's richest citizens died. Ile
was Lloyd McCann, professor of education at the University of
Arizona.
His was the American FUCCeSS story. Born on a small Ne-
braska farm, be worked his way through, all levels of school, re.
ceiving his doctorate at Colorado State College. Ile was a pub-
lic school teacher, then a superintendent of schools, and then a
professor at various universities before joining the University of
Arizona faculty in 1958. Meanwhile he had served with dis-
tinction in combat during World War II.
Dr. McCann achieved all torts of educational honors. He
was an ozi mending authority on school law, received many
29
34
UPSURGE AND UPHEAVAL IN SCHOOL LAW
financial grants for his work in his field, and published numer-
ous books and articles on the subject. He was president of the
National Organization on Legal Problems of Education and a
member of many educational crw.rtizations. He became head
of the department of educational administration at the Univer-
sity several years ago.
Dr. McCann had two distinctive qualities that made hima
great teacher. First, he was more than a professor of telt. ...firm.
He was thoroughly versed in lab, government, agriculture, an-
thropology, and other intellectual fields. For example, he pub-
lished a number of articles on purebred cattle and Great Plains
history. McCann deplored today's extreme specialisation and
fragmentation of higher education. He was in the best sense a
completely educated man, virtually a modern Renaissance
man. He happened to teach educational law, but his interests
encompassed the entire spectrum of knowledge.
The other quality McCann had was his deep interest and
faith in students. He was more than a good classroom teacher.
He spent much of his time advising students on all levels, talc
ing particular interest in graduate students. lie placed m my of
them in positions throughout the country. Former students by
the hundreds would return to Tucson to consult with him
about moving to other positions.
He was indeed rich.
Dr. M. A. McGhehey approached Dr. McCann in November 1968 with a request
that Lloyd serve as editorin-chief of the project to revise NOLPE's first yearbook,
LAW AND THE SCHOOL SUPERINTENDENT However, before this assignment
30
; 35
LLOYD E. MCCANN
could be carried out, Lloyd's health became such that he could not work on the pro-
ject, although he was enthusiastic about it. In recognition of his signal contributionsto
the field of educational law, and to this organization, the NOLPE Board of Directors
unanimously directed that the volume, which will appear in 1970, be dedicated to the
memory of the man who would have been its editor-in-chief had he lived to complete
the work. Although that privilege was denied him, Lloyd's memory will live on in the
project which he wholeheutedly supported, that of interpreting the law to beleaguered
superintendents, who, like himself, expend their lives unselfishly in the interest of their
students.
31
36
TRIBUTE TO ROBERT L. DRURYby
Dr. Roger M. Shaw
Professor of Educational Administration
Kent State University
You are in Drury Country. Seven months &go, to the day and almost to the very
hour, Robert L. Drury was struck down by an apparent heart attack in this city. lie
died with his boots on and riding the range as was his wont and duty. His host on that
Saturday morning, coincidentally as it is our host at this convention, was John Carroll
University. Ile died in the middle of a speech on some of the current concerns in Ohio
school law.
Dr. Robert Drury was legal counsel during m)st of the second half of the twen-
tieth ccntry to the Ohio Education Association, and in the earlier days this was an ex
traordinary position. He was full -time, salaried, headquarterly officed and adviser in-
directly and sometimes directly to almost 100,000 educational operatives in Ohio.
He regularly sat, ornicua curiae, at the elbows of attorneys who were represent-
ing OEA members. When Bob Drury walked into Ohio courtrooms during schoollaw
cases, there was a kind of hush, and the name, Drury, quickly and quietly opened
doors to judges' chambers to the end that justice was done with expedition. Lesser
legal tights, like some of us from Ohio in this room, could feel secure in the knowledge
that, when we were reaLy stumped, Bob Drury could help us.
Ile was a NOLPEan from its founding. I remember the occasion at Duke Univer-
32
ROBERT L. DRURY
sity when he became a charter member by passing a dollar to "Mother Madeline'
Remmlein over a decade and a half ago. Of his many services to NOLPE, perhaps his
greatest was his editorship of the first volume in NOLPE's "Legal Problems of Edu-
cation" series. It bore the title: The Law and the School Superintendent. Contd.
butors to that useful work, now out of print but about to be revised and updated by
NOLPE, are seated in this room this noon. Coauthor of several other school-law works,
his indisputAble claim to fame, however, is Drury 's Ohio Set -ol Guide, W. Ander-
son Co. (1954, 1960, and 1966),-some 1000 pages of which 250 are textual, narrrative
commentary on the body of school law in Ohio amply footnoted and bieannially
pocketpieced to the constitutional, statutory, administrative, and case law which in
authoritative documentation comprises the balance of the tomc. I have been so sun
quint about this book and its author as to deem it almost comparable to another set of
commentaries-Blacksone's.
Robert Drury wouldn' t want us maudlin in these fleeting and few moments of
tribute to a great NOLPEsn. In his own matter-ofset spirit, therefore, I simply say
that to us in Ohio he was a living legend before he died and that the seven months and
three hours since his untimely death have been, in many moments of mourning, a per-
soul and professional void.
33
38
TRIBUTE TO DR. NEWTON EDWARDSby
Walter L. HazelSuperintendent,
Ames, Iowa
Eighty years agt, at Carthage, North Carolina, a baby boy was born. Three weeks
ago at Liberty, North Carolina, which is near Carthage, the man who achieved great.
ness in school law and who came from that baby boy died as he was being taken to the
hospital because of a heart attack. He was living with an older brother and sister at the
time. He has a son who is in govermenial work in Washington, D.C.
This man, Newton Edwards, was great to us NOLPEans because he was the first
to see the importance of school law, particularly as it relates to the courts. He sexy
carefully researched the law, organized it, and wrote about it in his great book The
Courts and the Public Schools. Following the early 1930's and many years thereafter
this book was the standard textbook in school law courses throughout the United
States. 1 studied it in a school law course at the University of Iowa in 1934. Many of
you, as either students or teachers, also used this book or a latex editian of it. It was
and is an extremely accurate and well written book.
Newton Edwards taught at the University of Chicago for approximately thirty
years before retirement. Following his retirement he taught at the University of Texas,
University of South Carolina, and most recently ,luring summer sessions at Duke Uni
verity.
34
;'39
NEWTON EDWARDS
Newton Edwards was not only a scholar and a writer but a humble, kindly man
with a keen sense of humor and who had the touch of the master teacher. He influ-
enced riany competent young people to make school law one of their specialties. This
room is filled with such people and the second generation of such people. Dr. Ed
Bolmeier is an example of the first generation and Dr. Evelyn Fulbright of the second.
Many of you will remember the NOLPE meeting at Louisville where Dr. Newton
Edwards was honored by being made a Colonel, was given the key to the city, and was
made an honorary life member of NOLPE. You also remember the interesting, thought.
ful address he gave to us at that time. It was filled with keen humor.
I an pay no higher tribute to Dr. Newton Edwards, nor illustrate it better, than
by showing you a picture of him proudly standing between two of his boys who are to
receive special awards at our banquet tomorrow night. These two are Dr. Lee Garber
and Dr. Ed Bolmeier. This picture was taken at a Duke University School Law Con-
ference. Dr. Newton Edwards attended every Duke School Law Conference since the
first, except the most recent one. lie will -e sorely missed there in the future. How-
ever, his influence will continue to be there, at future NOLPE conferences, in college
classes where school law is taught, and out in the field where school law problems arise
and must be solved. The school law seeds he planted will continue to flower. And as
I my this I am reminded of Dr. Anne Flowers, a second generation protege of his.
3.5
T 40
THE IMPACT OF LEGAL AID PROGRAMS FOR THE POOR
ON THE OPERATION OF PUBLIC SCHOOL DISTRICTS
IN THE UNITED STATES
byGregory B. Taylor
Attorney, Cleveland, Ohio
The tide of our subject for this afternoon is "The Impact of Legal Aid Prop-rams
for the Poor on the Operation of Public Schoo' tricts in the United States." There
are a number of different possibilities one might consider under This topic. The best
thing for me to do, since I have no way of knowing what your scheduled speaker
would have covered, would be to go through a few topics. Members of the panel and
some of the listeners will mention things that are of concern. Then we can enlarge
upon these things in the sessie .1 that follows.
When we speak of Legal Aid Programs for the Poor, what v. e really ought to bear
in mind is that this whole field has been revolutionized in the last two or three years in
this country because of the impact of the 0E0 War on Poverty. Under this program,
commer:::ng about four years ago under the Johnson administration, the so-called
neighborhood legal service programs were launched in all of ow major cities, many of
our smaller cities, and in some of our rural areas in an effort to provide legal service to
the poor in an intensive way. The old privately funded legal aid societies were entirely
unable to provide intensive service, relying as they were on very limited funds and
staff.
Our situation here in Cleveland is as good an example as any, Ind the one with
36
LEGAL AID PROGRAMS
which I am most familiar. Just a few years ago we had only one Legal Aid Office
located in the center of the city. This one office could serve a very limited clientele
who had to find their way down to the center of the city, into an imposing building,
and up to the office in order to get the assistance they needed. Obviously in most cases
the attr,rneys were unable to provide more than a very limited kind of legal service, in-
volving very little intensive trial work or anything of that nature.
With the onset of the Legal Service Program funded largely from the 0E0 we
now have ten offices in Cleveland, located throughout the so called target poverty
neighborhoods. The offices are of the store front type which the clients can easily
find and relate to on a basis of the neighborhood in which they live. The clients need
not go through the ritual of going into the middle of the city which many such clients
would rarely, if eves, do. This has obviously psychologically placed legal assistance
directly within the reach of thousands and thousands of low income persons in our
major cities in a way that it was never before possible. Furthermore, our enlarged staff,
which now consists of approximately full time lawyers, enables us to handle a much
larger case load, and obviously to handle it much better. In theory, although not
always in practice, the staff lawyer can handle a case with the kind of attention that a
private attorney would give his client.
The area that I happen to be in is a further indication of what has happened as a
result of this federally funded legal service program. I specialize in a so-called area of
"law reform"a concentration on efforts to actually bring about basic changes in our
legal system partly through utilization of constitutional theories. The United States
Constitution challenge certain private practices, for example, in the consumer-
landlord field and perhaps even more importantly, practices of our government and
our public bodies.
The administration of public welfue is, perhaps, the best rumple, in which a
tremendous amount of litigation has been going on ova the last two or three )ears as a
result of these legal s =Nice programs. As a result, offices have been set up to specialize
37
: 42,
UPSURGE AND UPHEAVAL IN SCHOOL LAW
in the handling of this kind of case and the bringing of test cases into Federal Court
to challenge on constitutional and statutory gounds certain state laws or regulations
in the administration of public welfare. Other area related to this are the areas of
education and of health. There are °the, areas besides these, but these are the three
that I think commend themselves to our attention most under the present legal service
program.
A number of interesting developments have taken place in the educational field;
that is, the area of law affecting public school students and the administration of pub-
lie education. This is an area that is very much in its infancy. We are just beginning to
have some ideas as to how to stir this thing up and create lob of problems for Iota of
people. There In a few precedents already on the books now wi.kh suggest the
direction in which some of these efforts are taking us. I might put these under certain
categories. Rights of public school pupils, is one of these areas. Another area is that of
related educational services. What comes to mind is the effort that has been going on
in many places today to bring about improvement or expansion of our National
School Lunch Program. This is not specifically an educational problem, but it is cer
tainly related to the administration of our schools. A third area is the equality of
educational opportunity. Each of these three areas has enough going on in it that I
think each deserves some consideration. Also enough has happened in these areas to
suggest in what direction they may be going.
Student rights is not a brand new idea. It is really a kind of a civil liberties area if
you want to think of it that way. And, of course, it is a particularly sensational area.
It gets lots of newspaper publicity. When we think of student rights the average man in
the street is likely to think of demonstrations and riots on college campuses. I didn't
have anything particular in mind, although here in the city of Cleveland we worry
about what kind of buttons people wear and whether they have mustaches. These par.
tkular cases have been in court here in our community but they are not c.ases brought
by legal service programs for the poor. flowerer, there are related areas that do come
under the category of legal service for the poor which are in the area of student rights
38
LEGAL AID PROGRAMS
and this is particularly true in the matter of schools suspension and expulsion rules.
One comes immediately to mind. You may be familiar with the Madeira case in
New York City. It had to do with whether or not a school rule which provided for the
transfer of a student from one school to another as a result of certain disciplinary in-
fractions required a right to counsel for the student who was subjected to this kind of
discipline. The question was whe'her or not the student could take lawyers to a sus-
pension or disciplinary hearing to determine whether the student should be transfer-
red to another school; did that student have a right to have attorneys present during
that hearing process? In this particular case, the student did not have the right to have
an attorney present because, although disciplinary, the hearing did not threaten the
student with any lose of important rights. The worst that could happen to him was to
be transferred from School A to School B.
Without dwelling at great length on that particular issue of law, it is an illustra-
tion of the kind of questions which in the student rights area are being pursued by
some of our legal service programs. Is the receiving of an education an interest or a
right of sufficient importance to can for the due process that we tend to associate
with property rights or other kinds of civil rights? I think the question itself is some
what rhetorical. In our society we are beginning to recognise what we have never
recognised beforethat the right to receive one's education without arbitrary govern-
mental infringement or interference is a right of subotantbd proportions which comes
under the kinds of protection that have tradionally been called due process, particular-
ly under the fourteenth amendment to the United States Constitution which affects
state action. As you know state action means more than just what the state does. It
means whatever any public officer does, acting under color of law, whether it be a
school board or the personnel of the school district.
Another area of student rights problems which we have in this community is the
thorny issue of school district residence requirements. I think this area is going to
receive continuing attention in the courts. Our suburban school districts, as you are
39
44
UPSURGE AND UPHEAVAL IN SCHOOL LAW
well aware, are feeling very insecure these days about the spilling over of inner-city
problems into their sanctified precincts. Some of our suburban communities that arc
undergoing rectal change seem to be very hard and fast about the way in which they
enforce their residence rules for attendance of the school. Unless you are a bona fide
resident of the community, you must pay tuition to attend the public schools or be
excluded.
Obviously the law of the different states very on this. In Ohio there is a statute
that covers this matter, but it has not been construed to fit all the factual situations
that may arise. By and large in this state, we rely on opinions of the Attorney General
of the State of Ohio for much of what goes for the law in tbie area. However, our
attorneys would like to get some cases into the courts.
I have a particular case in mind. The question is, what is i ona fide residence for
school purposes? Let me give you a fact situation that happens to be in our office
today. A girl was brought into juvenile court here in Cuyahoga County for being a
runaway, for being delinquent, for running away from home. Before her case come to
heating, the probation officer and the attorney for the girl cliecu.--,scd the case and con-
cluded that this child had a very unfavorable home situation the inner-city area in
the sense that the parental situation was far from satisfactory. She had a very respon
Bible aunt and uncle, a married couple, living in one of our suburban communities. It
was thought that the best thing possible for this child would be to live for a while with
her aunt and uncle in hopes that the situation at home would either improve or some
permanent arrangement could be made for this child. The child ended up living with
the aunt and uncle in a very favorable family situation and just several doors from the
high school in that suburban community. When the child attempted to enroll in this
high school she discovered that she was not considered a resident of this community
and therefore would be forced to pay tuition. She is faced with a very difficult
dilemma. The only way to avoid tuition is to go to the school in the neighborhood in
which she lives, which is five or six miles from where she now lives. She hki to take
three buses, requiring about an hours travel each way. She hr to travel after dark in
; 45
LEGAL AID PROGRAMS
the very dangerous parts of the city in order to get home from school. In the name of
our sanctified residence requirements, I submit, the child is being deprived of an edu-
cation. However, I don't know what the courts will eventually say about cases like this.
Let us talk a little about the area of related educational services; in particular,
the school lunch program. A couple of years ago one of our law reform projects
located in New York City becarne interested in this area as an overall attack on the
problem of hunger in the United States. There are a number of government funded
programs for combating hunger. The most wide spread is the Federal Food Stamp
Program by which the Department 01 Agriculture makes it possible by grants to the
State for persons on welfare and others of very low income to stretch the buying
power of their dollars for food. Other programs are Food Commodity Distribution
Programs which some of our rural people find very important just to keep body and
soul together. A third is the meal program in our schools, both lunch program and
breakfast.
Unfortunately, these programs like most federal programs for the poor have
been a great disappointment to those on the receiving end. They may look good on
paper but by and large they suffer from gross hadequacy. Many legal analysts feel
that the inadequtcy really goes to a violation of the federal intent and the require-
ments for the administration of the programs. The case I have in mind is a problem in
Cleveland.
Cleveland is not typical. There is nothing about the Board of Education of Cleve-
land or the County Welfare Department here that should set them tpart as bad
examples particularly. Cleveland suffers from the same problems that all of our metro-
politan areas do, either a lack of funds or an unwillingness to devote funds to the
nzeds of poor rrople. So one gets into J ''buck passing"situation where the city says
it is the county's problem and the county says it is the School Board's problem and
the School Board says it. is somebody else's problem. Nothing or very little gets done
about it.
41
46
UPSURGE AND UPHEAVAL IN SCHOOL LAW
We do have a school lunch program in the city of Cleveland, but unfortunately
up until now only a very small percentage of our elementary schools offered the pro-
gram. Although the program's original intention was to take care of the needs of poor
children wherever situated, the practical implementation has been extremely minimal,
particularly on the elementary school level.
There is also the problem of stigmatizing those children who do have access to
the program. In some parts of the country children are made to use a separate lunch
room or to eat at a separate time or to perf-..rm certain kinds of work in return for
their lunch in such a way that obviously seta them apart. In Cleveland the recipients of
these lunches are required to use an identification card when most of their peers use
cash. Practices of this kind stigmatize.
There are test cases in some cities raising the issues before the courts as to the
legal requirements for the administration of these programs, possible deprivation of
constitutional protection, or violation of statutory requirements. As you can see this
gets into some very complex issues of kw and administrative agency regulations. The
deeper you get into these problems, the more complex they seem.
The th...7d area and maybe in the long run the most important area in which legal
challenges are being brought and which affect the operation of our schools is the area
of equal educational opportunity. We have just seen the top of an iceberg. You are
aware the U. S. Supreme Court said that racial segregation is inherently unequal. This
matter came to a head just within the last few weeks with the Supreme Court's order
to school districts in the State of Mississippi to desegregate. Now our legal service pro-
grams are not specifically concerned about racial problems as such. You might think
that would be one of our chief issues, but by and large the populations with whom we
deal are not involved in racial segregation, at least not in the Cleveland area. But theproblem of educational quality and equality leasing aside race is very much with us.
Fint what is the legal definition of a quality education? Secondly, what are the
42
47
LEGAL MD PROGRAMS
constitutional requirements of providing equal opportunity for all children to receive
a public education? These two clues'. ms are going to be in the courts and are going to
produce I am sure, eventually revolutionary results in the administration of public
education.
Two or three suits have at least begun to raise some questions if not give the
answers. Many of you probably know about the case of Hobson v. Hansen in the Dis
diet of Columbia. This was a follow-up suit to fully implement the requirements of
the Supreme Court decision in 1954 for complete desegregation of the public schools.
The court, looking realistically at the situation in Washington, D. C., could see that
nothing very practical in the way of desegregation is going to be accomplished any
more within the District of Columbia. The school population in the District of Co lum
bia is approximately ninetythree percent black at present.
However, the court had a lot of interesting things to say about whit equality
ought to be required within a school district. It threw out the notion of a token con
cept of equality and suggested that if you can't produce basic racial integration within
the District of Columbia, you must see that all school children receive a meaningful
equal education. Education must be equal in terms of such things as how much money
is spent per pupil in the schools, what kind of facilities each school has, and the
teachers' salaries. The court was also very hard on the track system as administered in
the District of Columbia. Lots of very thorny and difficult and revolutionary legal
theories came out of that case.
Whether they will be applied widely in other school districts we have yet to see.
We might as well face the fact that the drift of judicial opinion and the law in this
area is to require more and moce rigorous notions of basic equality within a school
district in every possible facet of the educational process.
The educational prows is considered more broadly in the case that was filed in
the Federal Courts last year in the State of Illinois, McGinnis v. Shapiro. This case
43
48
UPSURGE AND UPHEAVAL IN SCHOOL LAW
raised the question of whether school financing schemes deny equal opportunity to
those students who are located in districts where a relatively small amount is spent
per pupil on the educational process. The theory of he case is that education is essen-
tially a state, rather than a local function. There is good constitutional basis for that
principle throughout the United States. In Ohio our public educational system is set
up under the State Constitution and is the responsibility of the State Legislature, not
the local school district. The local school district is just a convenient way of delegating
the authority of the State. The theory of the McGinnis case was that since the State
Government is responsible for public education throughout the state, it must account
for the fact that only $400 per pupil is spent in some parts and over $1,000 per pupil
6 spent in other parts. Isn't that difference an obvious denial of equal educational
opportunity on the part of the state? This is probably a sound theory, but it just
didn't win in that particular case. Surely its obvious that $1,000 compared to $400i5
a gross inequality, but what are you going to do about it, short of having the State
take over the whole process and have direct taxing and funding by the State rather
than by the local school district? It seemed to the Court that that scheme was imprac
tical. The Court was also not entirely convinced that absolute cash equality was re
quired by the Constitution. I think the Court suspected that maybe equal educational
opportunity is a more profound issue than just how much money is spent per pupil. I
am sure the Court is right on that. Anyway that case never got anywhere and the
denial of the suit was affirmed by the U. S. Supreme Court and that is the end of that
0118e.
However, there are others waiting in the wings. They will be more sophisticated
suits based on some of the same principles. As long as the State is responsible for edu-
cating all pupils then the obvious inequalities must be remedied one way or another. I
suspect we are going to get some courts doing something about it in the months, or at
least the years ahead.
One other area of litigation that has really gotten nowhere and may also have
some implications is the litigation that arose over the Ocean Ilillfirownmille fracus in
44
:
LEGAL AID PROGRAMS
New York City. This is the area of community control and school decentralization. A
suit was brought there on behalf of the Ocean Hill-Brownsville group against the State
of New York and the School District. It was argued that there was a positive duty to
decentralize the schools and provide for community control because that was the only
way one could get educational opportunity for slum children. It was a denial of equal
protection not to have decentralized and community controlled schools. The court
rejected that principle but it gives you some notion of the kinds of theories and argu-
ments that are now being pressed on the courts.
45
50;
THE IMPACT OF LEGAL AID PROGRAMS
FOR THE POOR ON THE OPERATION OF PUBLIC
SCHOOL DISTRICTS IN THE UNITED STATES
by
Thomas A. Shannon
Schools Attorney, San Diego Unified School District
and
Legal Counsel, California Association cf School Administeators
In August, 1964, the Economic Opportunity Act became law in the United
States. It included, among other provisions, a section establishing the "community-
action.program" approach to dealing with the problems of poverty. This approach was
characterised by an all-out attack in the local community against poverty. The taw
contemplated that all of the resources of the local community were to be brought to
bear to help eradicate the plight of the poor. The generalship of this part of the "war
on poverty" was to be shared by poor persons who also were supposed to be involved
in the actual carrying out of the projects. Under the law, the "community action pro-
gram" projects were financed mainly by federal funds administered by the newly
created United Staten Office of Economic Opportunity.
One of these "community action programs" slated to receive substantial federal
funding as part of the frontal assault on poverty in our nation was the legal services
program. The rules for the establishment of the "community action program" of legal
services were clearly set forth in a talk by Theodore M. Berry, Director of the Com
munity Action Program of the Office of Economic Opportunity to a meeting in Wash.
ington, D.C. in June, 1965, of SOO lawyers and other persons involved in legal aid
46
LEGAL AID PROGRAMS
work throughout the country.' This meeting hao been called by the Attorney General
of the United States and the Director of the Office of Economic Opportunity to dis-
cuss the role of the lawyer in the implementation of the Economic Opportunity Act.
The rules for "community action program" legal services were:
1. The poor should receive legal services equivalent to
that received persons who can afford to pay lawyer's fees;
2. Legal representation of the poor should be aggressive
and dedicated in nature;
3. The legal services program should be as independent
of outside influence as possible;
4. The legal services program should be willing end free
to handle the most controversial cases;
5. The legal services program should be broadly repre-
sentative of the community and the groups to be served
should be partners in the control and operation of the pro-
gram.
Within the framework of these rules, Mr. Berry said that the "community action
program" legal services program should provide a full range of service. He specifically
identified:
. . .government abuses whether they involve welfare,
she school system or public housing.2 (emphasis added)
as an integral part of tht "full range of services" to be offered by Office of Economic
Opportunity financed lawyering. It is to the second part of that triumvirate which this
47
:52,
UPSURGE AND UPHEAVAL IN SCHOOL LAW
paper is addressed.
The federally funded legal services program operated under the Economic Op-
portunity Act has been in existence just over five years. The question which arises is:
What has been the impact of these legal aid programs for the poor on the operation of
public school districts in the United States? To answer that question adequately it is
necessary to look briefly at the history of the legal aid program for indigent persons in
the United States. Since the question is framed, as a practical matter, exclusively in
terms of the civil law, we will not concern ourselves with attempts to provide legal de-
fense for the poor in criminal law matters.
Legal aid programs providing legal counsel and representation in civil matters for
persons who were financially unable to retain an attorney have a long, rich history in
the United States. Characteristically, it was a charitable services activity wholly funded
by contributions from the local community. Typically, the local organized bar, and
wives of local lawyers, provided the leadership in moneyraising efforts to finance the
legal aid program. The local bar also provided a reservoir of public spirited lawyers
who would accept indigent clients on a volunteer, no-fee basis. These lawyers usually
were the younger members of the bar who not only had more time because of their
relatively Small practice in their early years to devote to legal aid referral clients but
also because they were eager to develop the broadest possible experience in the general
practice of law.
Legal aid funds and the time of volunteer attorneys were very limited. These two
factors, in combination with the pi-nailing view that legal aid societies generally
limit their legal assistance offerings to persons who had legal problems which could be
solved at tv a trial court Inel, severely restricted the nature of the lawyers' caseloads in
legal aid societies. Some areas of the civil law, such as matrimonial cases, were entirely
excluded from legal aid programs unless the were compelling reasons, such as the
danger of injury to a wife who could not get a restraining order to keep a derelict hus-
band away, to change the general policy.
53
LEGAL AID PROGRAMS
Moreover, a dominant factor in the establishment of policy governing legal aid
programs was the local bar, which usually was conservative in nature and, therefore,
exceedingly loathe to visualize the legal aid program as anything more than a defensive
legal charity. That is, legal aid was structured to provide immediate legal solutions for
worthy persons caught up in identifiable legal snares. Since it is improper for a lawyer
to advertise, the legal aid program was not well known among the poor, who were the
very persons it was supposed to assist. And, finally, the definition of the level of pov-
erty a prospective client must have sunk in order to qualify for legal aid was very kw.
The picture that emerges of the typical legal aid program for the poor in the
larger cities of the United States prior to 1964 is a small law office staffed by one or
just a few lawyers who practiced under severe limitations in the freedom of choosing
clients and in the methods of representing them before administrative or legislative
bodies and at the appellate court level. The Economic Opportunity Act of 1964
changed the picture drastically by pumping millions upon millions of dollars into free
legal aid services for the poor and requiring that at least a portion of that money be
spent on "law reform" activities.
Legal aid societies throughout the United States were placed in a dilemma in
1964 by the Economic Opportunity Act. If they applied for federal funds as a com-
munity action program to combat poverty by providing legal senices to the poor, they
had to change their philosophies and methods of operation drastically. That is, if their
applications for federal funding under the Economic Opportunity Act were to be
approved, they must take action to in% ate the poor on their boards of directors, agree
to aggressively represent the poor in even the most controversial eases, employ poor
people wherever possible, act more independently of ' outside influences," establish a
more liberalized definition of what constitutes "pc) %erty" in order to qualify for free
legal aid, and do a much better job of acquainting the poor with the free legal aid ser-
vices available under the legal aid program. In return for assurances that these con
ditione would be satisfied, a legal aid society could profoundly expand its program of
legal assistance to the poor. The alternative to the acceptance of these conditions by
49
UPSURGE AND UPHEAVAL IN SCHOOL LAW
the established legal aid societies was the creation of a new organization in the local
community designed to provide free legal services as a "community action program"
component under the Economic Opportunity Act.
Communities differed in their responses to the carrot of federal funds held be-
fore them by the Economic Opportunity Act of 1964. In some cities, the legal aid
society became the "community action program" legal aid project, in other cities the
legal aid societies refused to alter their historic policies and new agencies were born to
carry out the "community action program" legal services, and in yet other cities, legal
aid societies shared "community action program" funds under the Economic Oppor-
tunity Act of 1964 with newly created legal service agencies.
Regardless of whether the legal services funded by the Economic Opportunity
Act of 1964 are provided at the local levd by old-line, established legal aid societies or
by newly created agencies, a significant part of their program is "law reform."
Under the "community action program" approach of the Economic Oppor.
tunity Act of 1964, for legal aid to the poor, the term "law reform" means that, in
addition to handling the usual types of legal problems, the legal aid society also should
carefully select for special treatment those unusual cases which, if resolved in (nor of
the legal aid client, could have a significant impact on the lives of the poor. These
"unusual" cases should have community -wide significance, and would include:
. . .such matters as test case litigation, the reforming
of administrative agency practices, the development of eco-
nomic programs, or the representation of groups (of poor
People) 3
That 'law reform is the thing" under the Economic Opportunity Act of 1964 is
illustrated in the conditioning of EOA federal fund grants to legal aid agencies on the
development by such agencies of a definite plan which:
50
55.-
LEGAL AID PROGRAMS
. ..should include a list of the issues that the program
feels have taw reform significance, and indication of the rela-
tive importance of each of these issues, the intended strategy
for handling each of these issues, and the priority to be set
between the handling of these issues and the handling of
divorce and other routine cases. A checklist should also be
developed for the ease of the staff so that they will immedi-
ately recognize the law reform issues. Finally, the program
must develop a plan for using volunteer lawyers to assist in
law reform.. .4
The object of "law reform" is to remake the law in such a way that the civil and
human rights of poor people are given a full and fair consideration and to prevent the
law from beings tool of oppression and thwarting the socially desireable aspirations of
;icor people to share more fully in the material rewards of personal industry and
productivity. It is a commonly known fact that seeking education is the single most
important endeavor for poor people who are attempting to better themselves. It is
perhaps belaborir.g the point to state that education is of significant "community.
wide significance" to the poor. Since the poor people of today depend primarily onthe public .chools for their education, and the public schools are administered under
state laws and local school board rules and regulations, it is hardly surprising that the
local public school would be a natural target for law reform."
To determine the extent to which "law reform" by federally financed legal aid
agencies has affected the operation of local public schools, I wrote to the directors of
more than eighty legal aid entities throughout the United States last August asking
them about their interaction with the local public schools of their communities. Over
fifty responses were received. In a significant number of cases, there had been consid
erable dealings with the local public schools or. the part of legal aid entities in our
nation. The areas in which local publ:c schools and legal aid agencies dealt with eachother may be divided into at least nine separate areas:
51
56.
UPSURGE AND UPHEAVAL IN SCHOOL LAW
1. student discipline;
2. use of federal funds by local public schools;
3. school bus transportation;
4. racial integration of pupils;
5. school district organization and management;
6. school tuition;
7. application of the "one-man, one vote" principle;
8. state aid to local public schools;
9. educational activities about the law.
Let us consider some representative examples of cases under each one of these
categories:
STUDENT DISCIPLINE
Probably the most numerous interchanges between the local public schools and
legal aid agencies involve the discipline of pupils. School administrators and teachers
are very concerned about their capacity to control discipline in the schools. They view
themselves generally as sound people who are specially equipped by professional train.
ing and specially licensed by State law to mete out punishment to errant pupils as their
discretion tells them is appropria'- to maintain control over the situation. They look
upon themselves as "second parents" of pupils and believe that to be successful they
need the widest possible flexibility in dealing with their pupils who may be discipli-
plinary problems. They tend to view any attempts either to limit their exercise of
reasonable discretion in punishing pupils or to formalize their approach to the tx6be
having pupil through the application of 'judicial concept like "due process" as efforts
which frustrate them in maintaining good order and discipline in the schools. As valid
as this viewpoint may be, the fact is that the law is changing. And this change is work-
ing to erode the power of school administrators and teachers over their young
charges.5 This fact has not gone unnoticed by legal aid lawyers who, in the spirit of
52
57,r
LEGAL AID PROGRAMS
"law reform" arc continually attempting to expand the rights which the law would
recognize that children have with the resultant narrowing of authority of school
people. An example of this kind of ease is Anderson c. Independent School District
i'Vo. 281. This matter was recently considered by the Hennepin County, Minnesota,
District Court as a result of a lawsuit filed by the Minneapolis Legal Aid Society.
In that case, the plaintiC was a sixteen year old high school student who was
!suspended from school on January 10, 1969, for allegedly having committed the
"offense of smoking." In the complaint for injuctive relief, the attorneys for the
Minneapolis Legal Aid Society claimed that (1) their client hzd a right to a hearing on
his suspension under the due proe.!ss clause of the Fourteenth Amendment to the U.S.
Constitution, (2) the "no smoking" rule was only sporadically enforced by school
authorities and that the selective enforcement of the rule against young Anderson was
a denial of the equal protection of taws, (3) the punishment meted out to young
Anderson was "grossly disproportionate to the offense," (4) a school district is "pre-
cluded from issuing regulations that would deny the statutorily guaranteed right to a
free public education for trifling offenses," and, (5) effectively, the only valid test for
the adoption and enforcement of a rule regulating pupil conduct is class disruption 01
undermining of discipline in the schools. The District Court ordered that young
Anderson be reinstated and the school district bas appealed the decision.
In New York City, in Knight e. Board of Educatical,6 the "Community Action
for Legal Services, Inc.," brought a lawsuit in the U. S. District Court for the Eastern
District of New York in 1969 which resulted in the reinstatement in school of a large
number of suspended students. And in San Francisco in December, 1967, a federally
funded legal aid agency represented a pupil who had been suspended from school as a
result of having been arrested on suspicion of throwing a fire bomb in a school hall-
way. The pupil claimed he should have had a hearing before his suspension from
school. The California Supreme Court denied a petition for a hearing and the school
district's action of suspension was allowed to stand.7 The question of whether or not a
student who is the subject of disciplinary proceedings in a public school is entitled to a
53
;
UPSURGE AND UPHEAVAL IN SCHOOL LAW
hearing probably is not settled to the satisfaction of all lawyers in California.Th The
"Alameda County Legal Aid Society" filed suit in January, 1969, to require the Oak-
land city public schools to hold "proceedurally adequate hearings" in pupil
nary cases.
Not% itlistanding the actual litigation which occurs in the area of pupil discipline.
most of the efforts of legal aid agencies in dealing with school authorities in pupil
discipline matters involve out-of-court negotiations with school officials or appear-
ances at suspension hearings. It is the unusual case that goes into Court. Probably,
every legal ail agency in the nation has had such informal dealings with local public
school officials, ranging from "excessive suspensions," which, when such practice:
. . .has been called to the attention of school autho-
rities, it has been terminated immediatelyP
to school authorities in a poverty area junior high school with a high pupil drop-out
rate:
. . .going overboard in their disciplinary measures.9
It is indeed a new cra when school children who are the subject of disciplinary
action in a school become represented by attorneys. Part of the reason was eloquently
expressed in Brown c. Board of Education, 347 U. S. 483 0954) et p. 493:
Today, education is perhaps the most important
function of slate and local governments. . it is the veryfoundation of good citizenship. Today, it is the principa?
instrument in awakening the child to cultural values in pre-
paring him for later professional training And in helping him
to adjust normally to his enviorment. In the days it is
doubtful that any chill may reasonably be expected to
LEGAL AID PROGRAMS
succeed in life if he is denied the opportunity of an education.
But the other part of that reason is attributable in great measure to the ex-
panded cervices of federally financed legal aid services to the poor.
USE OF FEDERAL FUNDS BY LOCAI.
PUBLIC SCHOOLS
The U. S. Government has provided millions of dollars in federal aid to local
school districts to pay for the special educational needs of children from poverty
families. Title 1 of the Elementary and Secondary Education Act of 1965 specifically
recognizes the special educational needs of children of low income families and pro-
vides money:
. . . to expand and improve their educational programs
by various means ... which contribute particularly to meeting
the special educational needs of educationally deprived child-
ren.10
Specific guidelines are established to assist local schools in determing who the pone
people are who are entitled to educational assistance under the law. These guideline:
arc somewhat subjective, however, and their application in local school districts is com-
plicated by neighborhood groupings and census tract data. The "Alaska Legal Services
Corporation" in Anchorage, convinced that:
many school districts throughout the country haveabused the Title 1 (Elementary and Secondary Education Act
of 1965) program due to their desire to employ the funds to
offset local expenses rather than to fight the adverse educat-
ional effects of poverty."
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60
UPSURGE AND UPHEAVAL IN SCHOOL LAW
helped induce the local school district to change its plans fo' the expenditures of such
funds in a "substantial" way.
In St. Paul, Minnesota, the "Legal Assistance of Ramsey County, Inc.," assigned
one of its staff attorneys to work with school districts in Ramsey County:
... to implement a free hot lunch programi2
under the federally financed school lunch program. One of the principal efforts of
this legal aid attorney was:
... working out procedures (with school district person-
nel) to insure that the students participating in the program
would not be treated differently than the students who were
able to purchase hat lunches
Two lawsuits in the area of pupil lunches under federal legislation, one against
the Kansas City, Kansas, School District No. `;00 and the other against the Detroit,
Michigan, city school district were recently filed by Ronald F. Pollack, Staff Attorney
of the "Center on Social Ntlfarc Policy and Law," New York, New York." These
lawsuits, filed in the, federal courts, sought declaratory and injustice relief to enable
"needy school children":
... to receive their school lunch entitlements in confor-
mity with Federal constitutional, statutory, and regulatory
law.
Essentially, the complaint, filed in both cases allege that poor children who are
pupils of the defendant school districts are entitled to free lunches under the federal
lunch program without having to work for them as a student cafec.mia worker and
regardless of whether or not they live in a minimally defined target area of poverty.
56
.Q4
LEGAL MD PROGRAMS
The "free lunch" lawsuit also is being contemplated by the "Law Reform Unit-
Legal Services Program" of Baltimore, 61aryland.15 The "Atlanta Legal Aid Society,
Inc.," fulfilled a watchdog function on its two local school districts (Atlanta and
Fulton Counties) concerning their implementation of the federal school lunch program
and:
. . . concluded, fortunately, that both school districts'
plans do ,omply with federal problems./6
Instead of going to court, the "Economic Opportunity Legal Services Program, Inc.,"
of Miami, Florida, appeared before the Dade County school board on several occa-
sions. As a result of efforts by the legal aid attorneys, the "Dade County Board of
Public Instruction" took two significant actions:
1. the application form was simplified to eliminate irrele-
ant and embarrasing questions, and
2. qualifications for the program and objectire standards
of administration were made uniform on a county.widr
basis."
Not content with this, the legal aid attorneys are pressing, the "I;oar3 of Public In-
struction" to strengthen its procedures for administering the federal free lunch pro
gram to insure that all children qualified to receive pro am benefits actually receive
them.
The theory underlying the school lunch lawsuits is not only that poor children
have a legal right to such lunches but that proper nutrition is indispensable to the
ucc eau] learninE, process. The legal aid agencies, on behalf of their poverty clients,
are striving for aceeptarice by local public officials of responsibility for insuring that,
at least while the children are at school, all children receive the benefit of a good diet.
57
62
UPSURGE AND UPHEAVAL IN SCHOOL LAW
III.SCHOOL BUS TRANSPORTATION
In an interesting case invoking school bus transportation of Indian pupils whose
parents could qualify for legal aid from the San Diego County Legal Aid Society, Inc.,
Cabfornia, the legal aid society filed a legal action against a county school district."
The purpose of the lawsuit was to require the Escondido, California, Union High
School District to provide school hus service between the Rincon Indian Reservation
and the I, al high school. The legal theory was that failure to provide school bus trans-
portation deprived the Rincon Indian children from receiving equal opportunity in ed-
ucation. The school district subsequently made provision of transporting the Rincon
Indian children between the reservation and the high school and the lawsuit never
pursued.
The "Legal Assistant of Ramsey County, Inc.," is now considering a lawsuit:
.. which would involve the denial to studentslivingin
St. raid of any form of free public transportation which is
available to out-of-state students."4
The subject of transporting children to and from school is certainly a matter of
considerable significance to the community. Therefore, it qualifies easily as an inno-
vative "law reform" activity of a legal aid society which affects the local public schools.
IV.
RACIAL INTEGRATION OF PUPILS
A lawsuit seeking to esablish racial balance among the pupils of an elementary
school in the Richmond, California, public school district was filed on October 16,
1909, by the "Contra Costa Serv, , Foundation."" Three of the five school
hoard members of the Richmond public school district voted not to answer the
Sts
63
LEGAL AID PROGRAMS
complaint. Illy trial court then accepted all the allegations in the legal at society's
complaint as true and:
. . ordered the school board to desegregate the school
that is the subject of this action and to adopt a proposed plan
of desegregation which was to he filed with the Court within
thirty (30) da 20
Thus, a legal aid society was the attorney in a legal action which produced the first
judical order requiring a local public school district in California to develop and im-plement a pupil racial desegregation plan. However, it should be noted that the pupil
desegregation plan was later changed from its origianal format and such change was
approved by the Contra Costa County Superior Court. Without hesitation, the "Contra
Costa Legal Services Foundation" promptly filed a petition for writ of mandate against
the Superior Court in the California Supreme Court. That action was filed in August,
1969, and is now pending."
In an imaginative twist to school pupil racial litigation, the "Legal Aid Society of
Albuquerque," New Mexico, filed a lawsuit against the New ,Mexico State Board of
Education and the Albuquerque Board of Education recently on behalf of Mt' it'an-
American poor people.22 This federal court action seeks a mandatory injuction direct.
ing the New Mexico public schools:
. . . to provide instruction in Spanish history, language
and culture on a basis of equality with American history,
language (English) and culture.23
Additionally, the suit also seeks relief from alleged discriminatory practices, including
"ability grouping" of pupils by tests which are not designed for Mexican-American
children, rules improperly inhibiting freedom of speech and the right of assembly of
Mexican-American children and stationing police and other law enforcement officials
59
64
UPSURGE AND UPHEAVAL IN SCHOOL LAW
in large numbers in and around public schools where Mexican-American children arc
enrolled.
Thus, the legal aid agencies now qualify as contenders in sensitive areas cf "law
reform" with old-line law reformers such as the "National Association for the Ad-
vancement of Colored People' and the "American Civil Liberties Union." The big dif-
ference, of course, is that federal funds finance the legal aid agencies.
V.
SCHOOL DISTRICT ORGANIZATION
AND MANAGEMENT
In his letter of August 13, 1969,2 f in response to my letter of August I, 1969,
inquiring about his legal aid agency's interaction with local public schools, John De-
Witt Gregory, Counsel of the 'Community Action for Legal Senices, Inc.," of New
York City, declared:
During the (recent) school strike (in New York City), which
lasted several weeks, many of our (legal aid neighborhood)
offices acted as counsel to community groups which sought to
reopen their schools. Several injunctive actions were brought
in state court to prevent striking officials from interfering
with those teachers who wanted to return to Kt -,0!. A similar
federal action was also brought, Rodrigues c. Skcar, 293 F.
Supp. 1013 (S.D.N.Y. 1968) . . (The strike ended before
most of the cases were decided.) I should add that in several
communities our offices continue to act as counsel to neigh-
borhood parent associations.
In an attempt to foster our clients' interest in community con-
trol of schools we recently cooperated in litigation challenging
60
LEGAL AID PROGRAMS
the establishment of a new centralized Board of Education
for the City. (Oliver v. Board of Education, --- F. Supp.
----(S.D.N.Y., 1969). . .. Finally, you may be interested in
McMillan v. Board of Education, Supp.
(S.D.N.Y., 1969) a federal case in which we seek adequate
schoo!ing for brain injured children who cannot afford private
schools.
In another case filed by a legal aid society which touches on a vital nei.e in the
management of the public schools, the "Legal Aid Society of Alamenda County" sued
the Oakland, California, City Board of Education in an effort to prevent the Board
from hiring a certain person as Superintendent of Schools.26 The complaint claimed
that the school board failed to comply with the procedures it had set up itself for the
selection of the new Superintendent and that the school board had failed to keep the
public informed of its deliberations concerning the selection of the new Superinten-
dent. The lawsuit, however, was aborted when the new Superintendent-disignate who
had been the tenter of this legal storm withdrew himself as a candidate for the super-
intendency.26
These cases reveal the unsettled nature of virtually' every aspect of public school
organization which touches upon the control of local public educalion. A nationwide
contest for control of the public schools b underway and the legal aid agencies have
aligned themselves on the fide of the poor parent of the poor child in the poor com-
munity.
VI.
SCI-1001. TUITION
In a unique contact with the local public schools, Ray A. Shaff;r, General Coun-
sel -f the "Indianapolis Legal Aid Society, Inc,," said in a letter dated August 25,
1969:
61
66
UPSURGE AND UPHEAVAL IN SCHOOL LAW
Our greatest, perhaps exclusive, activities in this area is in situ-
ations where a child of school age is living with someone other
than his natural parents. In such cases the school authorities
require that the person with whom the child lives pay tuition
for the child's attendance in school unless they ha.,e been
appointed by a court the legal guardian of the child. In a pro-
per case our office assists in this guardianship proceeding. A
real hardship exists in a situation where the child's parents are
living in the same city but in a different school district from
the one in which the child lives. In many eases the natural
parents cannot care for the child and places hini with a'friend
or relative usually for economic reasons. In such a situation
Indiana law will not permit a guardian of the child. In such
eases the child must return to his natural parents or someone
has to pay tuition.
this activity is in the vein of classic legal aid assistance. Effectively, it assists a
poor person to become the legal guardian of a child to avoid payment of tuition for
the child to etend school. It nicely illustrates the traditional legal aid society approach
which is highly pragmatic and effective from the viewpoint of the individual client. On
the other hand, the "law reform" approach would be to earnestly seek through exhaus-
tive legal research a basis for a legal challenge to the Indiana school U,tion statute and,
olive found, to kigorousl) press a test case attacking the statute's validity.
VII.APPLICATION OF THE "ONE-MAN,
ONEVOTE" RULE TO SCHOOL
BOND ELECTIONS
The Constitutions of some States require more than a simpl, inajority "YES"
vote at a school district election to approve the issuance of school bonds. In California,
62
67
LEGAL AID PROGRAMS
the stale constitutional requirement is G6 2/3% "YES" vote of the voters actually vot-
ing. The "Legal Aid Society of San Diego County, Inc.," is in the process of Fringing a
lawsuit to force a change in the 66 2/3% requirement to a simple majority of the
voters voting. This lawsuit does not represent the "breaking of new ground." In fact, it
is a cariron copy of lawsui!s filed elsewhere which have had the common aim of per-
mitting school districts and other local government entities to issue bonds upon major-
ity vote of those voting, rather than stacking the voting deck in such a way that one
"NO" vote equivalent to two "YES" votes.27 The San Diego lawsuit will attempt to
obtain legal of proval of a $35,000,000 school bond issue to rehabilitate schools built
}refer(' 1433 that are graded "Lnsafe" in their capacity to withstand earthquakes which
"failed" to pass because it only received 51%, rather than the required 66 2/3%, of the
popular vote at an election held November 4, 1969.
V111.
STATE AID TO LOCALPUBLIC SCHOOLS
In the fall of 1968, the "Western Cent,. on Law and Poverty" operating out of
the University of Southern California and funded principally by the Office of
Economic Opportunity, brought suit in the Los Angeles Superior Court to force the
State of California to provide for a substantially equal allocation of "resources" per
student to all the public school districts of the stAte.28 This lawsuit does not seek
equal statewide apportionment of tax money, because it recognizes that more money
must be spent in some urban areas than in suburban or rural areas. The lawsuit would
not penalize rich school districts, rather its objective is to insure that the educational
program offered in the poorer areas is comparable to that available to youngsters in
the more affluent areas.
In St. Paul, Minnesota, the "Legal Assistant of Ramsey County, Inc., "is con-
sidering litigation which:
63p
UPSURGE AND UPHEAVAL IN SCHOOL LAW
. . . would less the distribution formula of educational
aids under which inner-city schools do not receive benefits
comparable to schools in the more affluent areas.29
The legal aid agencies represent only one of the many organizations active is, the
school finance position. A major difference between the legal aid agencies and the
other grs_ ps, however, is that the legal aid agency, as an organization has no official
position on school financc--but it does have clients it represents who have strong inter-
ests in quality public education for tir: poor.
IX.
EDUCATIONAL ACTIVITIES
ABOUT THE LAW
Sargent Shriver, then Director of the Office of Economic Opportunity, said in
1965 during the embryo stages of the federally financed legal services program:
. . . The (legal assistance) programs we wish to finance
should be designed locally, by local people, to respond to local
needs. This insistence has already yielded a varisty of appro-
aches: (for example) legal education by lawyers for high school
teachers and guidance counsellors.39
The legal education programs conducted by legal aid agencies since 1961 have
been recognized as an outstanding contribution by all segments of the community.
These programs exist in ..ome form or another in virtually every legal aid agency in the
nation and invariably arc the "pride" of every legal aid Chief Counsel. The programs
range from conducting regular neighborhood seminar,- about such practical "gut"
issues as the rights of persons whose property or wages are attached, whose automo-
biles are repossessed, or who are evicted from their homes to teaching children about
the rde of law to develop respect for the manner in which our society governs itself."
69
LEGAL AID PROGRAMS
In conclusion, the whole gamut of legal aid activities in the United States indi-
cate that the legal aid lawyer is having a profound impact upon the operation of the
public schools by articulating the hopes, aspirations, and demands of the poor for
what they conceive to be better educational opportunities. The effectiveness of the
work of the legal aid agencies with the public schools cannot be measured only by the
number of lawsuits filed. In fact, some legal aid agencies eschew filing lawsuits except
as a desperate last resort. This attitude w,s cogently expressed by Frank B. Gorski,
Chief Attorney, "Essex County Legal Aid Association," Newark, New Jersey, when
he said:
In the main ..., the dominant reliance for law reform in
education or the administrative operation, falls into the politi.
cal arena where the normal give and take bargaining, mutual
goodwill of parties involved, and a modicum of sanity, all play
an important part.32
In its in-court or out-of-court representation of its clients in controversial "law
reform" matters, the legal aid agency is not without "s stern critics. And this is to be
expected. As the Santa Clara County, California, Bar Association magazine In Brief
remarked in an editorial commenting on the umbrage certain members of the Bar
took at a cartoon jibing the local legal aid agency which had appeared in an earlier
edition of In Brief:
What we take exception to is the implication that, because of
the lofty purpose, the awsomeness of the need or the dedica-
tion of the individuals involved, this enterprise (legal aid
agency) is somehow beyond the pale of a particular brand of
criticism or comment.33
As the legal aid agency in the United States matures as a "law reformer," it will
inevitably gather storms of criticism about it in its relations with the public schools.
65
70 ,
UPSURGE AND UPHEAVAL IN SCHOOL LAW
The public discussion evoked about the "law reform" activities of legal aid agencies
will have real impact upon the future development of legal aid programs--and it seems
equally clear that the operation of the public schools will continue to be influenced by
the povert: clients whom the legal aid agencies represent. The extent to which finan-
cing "law reform" activities of legal aid agencies can be maintained at present or ex-
panded levels is the key issue. Without adequate financing, "law reform" activities con-
cerning the schools are difficult to manage by legal aid agencies." Since federal funds
are involved, the effect of the public discussion about the "law reform" work of legal
aid agencies will be a significant factor in determining the future impact of legal aid
agencies upon the operation of the local public scl. Nols in America.
66
71'
FOOTNOTES
51 American Bar Association Journal 746 (August, 1965), "The Role of the FederalGovernment," by Theodore M. Berry, part of a report on the National Conference on Law andPoverty.
3 Letter of Earl Johnson, Director, Legal Services, Office of Economic Opportunity,Executive Office of the President, dated July 3, 1968, to Donald L. Clark, President, San DiegoCounty Legal Aid Society.
4 Ibid
5 See Tinker v. Des Moines Inekpendent Community School District, U. S. Sup. Crt.,No. 21, October Term, 1968, (February 24, 1969),
Knight v. Board of Education, F. Supp. (E.D., N. Y., 1969) Letter fromJohn De Witt Gregory, Counsel, Community Action for Legal Services, Inc., New York, New York,dated August 13, 1969.
7 Searbroichli v. Board of Education, San Francisco Unified School District, Sup. Crt. No.586014 (Dec. 14, 1967); Petition for hearing denied by California Supreme Court, Feb. 15, 1968.
7aSee Note 26, Infra.
a Letter from Roy F. Martin, Director, Legal Aid and Defender Socisty of Columbus, Ohio,dated August 5, 1969.
9 Letter from Vernani C. Anderson, Jr., Staff Attorney, Yellmystotie County Legal See.tiers, 'linings, Nlontana, dated August 4, 1969.
13 Elementary and Secondary Education Arc of 1965,20 U. S. C. 211.
Letter from John S. lirdland. Supervising Attorney .1Iaska Legal Services Corporation.Anchorage, Alaska, dated October 21, 1969.
12 Letter from Timothy J. Val Mean, Executive Director, "Legal Assistance of RamseyCounty, Inc.," St. Paul, Minnesota, dated August 11, 1969.
13 Ibid.
14 Walker v. The School Board of the Kansas t: y, Kansas, School District No. 500 et al.civil action filed in the U. S. District Court for the District of Kansas,(1969)and Kennedy v. TheDetroit Beard of Education civil action No. 33367, 11. S. Ditriet Court for the Eastern District ofMichigan, Southern Division (1969). See also letter from Ronald Pollack, Staff Attorney, Center onSocial Welfare Policy and Law, Columbia Uniyersity, New York. New York, dated August 27,1967.
15 See letter from Hugh NI. Boss, Attorney, Law Reform Unit, Legal Seniees Program.Baltimore, Maryland, dated Auguit 28, 1969.
67
72
FOOTNOTES
16 Letter from Michal D. Padnos, Director, "Atlanta Legal Aid Society, Inc.," Atlanta,Georgia, dated August 6, 1969.
17 Letter from Howard W. Dixon, Executive Director, "Economic Opportunity Legal Set-Oces Program, Inc." Miami, Florida, dated August 4, 1969.
18 Ma will v. Escondido Union High School District. San Diego County superior Court No.307570 filed August 1,1968, San Diego, California.
18aSee Note 12, Supra.
19 Johnson v. Richmond Unified School District. Contra Costa County Superior Court No.112094, filed October 16,1968, Richmond, California. See letter from Ralph E. Warner, Directing,Attorney, Richmond Office, 'Contra Costa Legal Service= Foundation," Richmond, California,dated August 14, 1969.
20 Ibid,
21 Olden v. Superior Court of the State of California in and for the C. unty of Contra Cost,Respondent, and Richmond Unified School District, Real Party in Interest, August 6, 1969.
22 Tderwa v. Henry, U. S. District Court for District of New Mexico, Civil No. 7661,amended complaint filed on !Day 26, 1969. See letter from William G. Fitzpatrick General Coun-sel, "Legal Aid Society of Albuquerque," Albuquerque, New Mexico, dated August 5, 190.
23 Ibid.
24 See Note 6, Supra,
25 Thompson v. Oakland Unified School District, Alameda County Superior Court No.389900 filed !May 20, 1969.
26 See Letter from Francis Kennett, Publicity Writer, "Legal Aid Society of Alameda C o . . ' 'Oakland, California, dated August 5,1969.
27 For a prototype of this kind of case, see Bogert v. Kinzer, Case No. 10116, now pendingbefore the Supreme Court of the State of Idaho. See also, "Legal Aid Newsletter," Issue No. 5,November, 1960 published by the Legal Aid Society of San Diego County, Inc., 961 Fifth Asenne,Room 400. San Diego, California 92101.
28 Serrano a. Priest, Los Angeles Superior Court No. 938251, filed August 23,1968.
29 ace Note 12, Supra.
30 51 American Bar Artociation Journal 1065 (Nov., 1965), The O.E.O. and Legal See.likes," R. Sargent Shriver.
3l See letter of Daniel E. Farmer, Chief, Juvenile Law Reform Unit, "Community Legal Ser-vices, Inc.," Philadelphia, Pennsylvania, dated August 21, 1969. See also letters of: (I) Herbert C.
68
73
FOOTNOTES
Goldstein, Executive Director, "Dauphin County Legal Service Association," Harrisburg, Pa., datedAugust 5, 1969; Catherine Nutteriille, "Neighborhood Legal Services Program," Washington, D. C.,dated August 15,1969; Phillip F. Fishman, Staff Attorney, "The Legal Aid Society of the City andCounty of St. Louis, Mo., dated August 19, 1969; and Hugh M. Boss, Law Reform Unit, "LegalServices Program," Baltimore, Md., dated August 28, 1969.
32 See letter from Frank B. Gorski, Chief Attorney, "Essex County Legal Aid Association,"Newark, N. J., dated August 14, 1969. See also letter from E. DeWitt Anthony, Jr., Director,"Legal Aid Society of Dallas, Inc.," Dallas, Texas.
33 In Brief, Official Bulletin of the Santa Clara County, California, Bar Association, Vol. 5,No. 7, September, 1969.
34 See letter from: (1) E. Bryan Henson, Jr., Director, "Tulsa County Legal Aid Society,Inc.," Tulsa, Oklahoma, dated August 19, 1969; (2) Arne T. Hendriks, General Counsel, "LegalAid Society of Topeka, Inc.," Topeka, Kansas, dated August 20, 1969; and (3) J. MacArthurWright, Executive Director, "Washoe County Legal Aid Society," Reno, Nevada, dated August 7,1969.
: 7469
THE LEGALITY OF SHARED TIME
by
Sam Duker
Professor of Education, Brooklyn College
Shared time or as it is sometimes called dual (nrollment is a procedure by which
pupils regularly enrolled in a non-public school also enroll on a part-time Lasis in a
public school. It is not in any sense to be confused with "released time" which is a pro-
cedure by which pupils are excused or dismis,ed from their public school classes in
order to receive sectarian religious instructions on premises away from the public
school. Not only are the purposes of shared time and of released time entirely dd.
ferent but in the case of shared time the pupil rect Ives credit for his work at the pub-
lic school which is transferred to his non-public school record or vice versa and
counted toward his graduation.
Various aspects of shared time and of its many possible variations and mani-
festations have been discussed in two short books, in lour doctoral dissertatiot.4, and
in at least four masters' theses. Since this is not the proper forum for the discussions
of the issues raised in these documents these writivs will be listed at the end of this
text and not summariked or reported on in this paper. While the topic here dealt with
is not dependent on the material there contained, I will emphasize the usefulness of
the items referred to for anyone wishing to become more fully informed about aspects
of shared time other than its legality.
Shared time is not a new procedure nor has it ever been widely adopted although
through the past decade it is likely that between 50 and 100 thousand nonpublic
school pupils have participated lo some extent in shared time programs during each
70
7 5
SHARED TIME
school year. Since it is not a recent development it is rather surprising that there is
such a dearth of case law concerning it. Actually there are only four appellate cases
concerned with the concept and of then. one deals with shared time only in the form
of dictum. 'fhere is also a lower court decision on this subject which is cited in the
Table of Cases at the end of this paper. Unfortunately at the time of writing this paper
I have been unable to obtain a copy of the opinion in that case and am therefore not
able to include it in my analysis.
Aside from these four cases which I will shortly discuss, the sources from which
the legality of shared time may be determined consist of I. opinions of State attorney
generals and of State Department of Education's legal counsel and 2. opinions
expressed in law review articles and any other writings on the subject by persons of
varying degrees of authority. This paper will deal almost entirely with the first of these
sources as the second is somewhat ephemeral in any determination of the solution of
the problem at hand. The excellent discussion by P. Raymond Bartholomew of the
entire question of Religion and the Public Schools which appeared in the Vanderbilt
Law Review in 1967 is however cited at the end of the Table of Cases. It is highly
recommended to thosa. wishing to pursue the subject of this paper further.
CASE LAW
Let us then first examine those court decisions which have dealt directly with
the legality of shared time 1,:ocedures.
The first of these cases is Commonwealth ex rel. Wehrle u. School Mstrict of
Altoona et al. (Pa.) 88 A 48!, (1913). In this case the attendance of a pupil regularly
enrolled in a nonpublic school in manual training classes at a public school was held to
be legal under the express provisions of a statute pertaining to such classes. It was un
equivocally stated that this statute did not constitute the giving of public school
money to private or sectarian schools.
71
UPSURGE AND UPHEAVAL IN SCHOOL LAW
For a long period of time this case was the only one dealing with shared time
and because of its concern with a rather specialized situation it was a rather weak reed
for the proponents of the legality of shared time to lean on.
Over half a century later in 1966 two cases concerned with the legality of sh rred
time were reported. The first of these was Morton v. Board of Education of the City of
Chicago 69 Ill. App. 2d 38, 216 NE 2nd 305, (1966). Certiorari denied (,), the Illinois
Supreme Ceurt in 1966.
In this case an injunction was sought against an experimental dual enrodment or
shared time plan created by a Board of Education resolution and inplemented by
report of the General Superintendent of Schools. The, resolution provided that pupils
living within the John F. Kennedy High School attendance area and otherwise eligible
for full time enrollment might attend that school on a part-time basis during the exper-
imental period from September 1965 to Jun( 1969.
The plan was implemented in September 1965. Students took all their courses
at Kennedy H.S. except English, Social Studies, Musk, and Art NI hich they took at
"nearby" St. Paul High Schcol. The public high school diploma was to be based on
credits earned at both schools.
The challenge by the plaintiff was based on the claim that the procedure out-
lined above was 1. a violation of the Compulsory Attendance Law of the State of
Illinois and 2. a violation of the Illinois and Federal Constitutional religion classes.
An appe.late court affirmed the lower court's dismissal of the case. The decision
turned almost entirely on the wording of the state attendance law which is carefully
analyzed and thus construed to permit shared time. No mention was made of the
Constitutional objections except in the Iasi paragraph of the opinion:
The program applies to all non-public educational institutions
72
77
SHARED TIME
sad not to any religious group or groups and offers its benefits
to individual studrnts on a purely voluntary basis upon appli-
cation by the parents and legal guardians of those children. As
stated in Pierce ' . . . the child is not the mere creature of the
Stat.: . ..' the experimental dual enrollment plan adopted by
the Chi',ago school board is merely an attempt to find a better
method for the education of the Chicago public school
children at the option of the parent., or legal guardians of these
children.
In Special bis.rict p. Wheeler, 408 S.W. 2d 67. (1966) the Missouri Supreme
Court reached a contrary conclusion on the facts of the particular case presented.
It was held that the use of public monies to send speech teachers, hired and paid
by the public school district, into parochial schools for speech therapy was not for the
purpose of maintaining free public schools and that where the school district provided
speech therapy for parochial school children in buildings maintained by the school
district and parochial children who desired such therapy were released from school for
part of their regular six-hour day, such practice violated the Compulsory Attendance
Law of Missouri which requires each school child to attend school regularly for six
hours during a school day.
No opinion was expressed concerning the validity of cu:rent practice when
parochial school children were given speech therapy in the public school in addition to
their regular school day at the parochial schcol.
The court cited McVey v. Ilawkins 364 Mo. 44, 258 S.W. 2d 927 in which it was
held that public school monks could not be used to transport pupils to and from
parochial schools. The court stated:
"The use of public school funds for the education of pupils in
73
78
UPSURGE AND UPHEAVAL IN SCHOOL LAW
parochial schools is not for the purpose of maintaining public
schools."
The court interpreted the compulsory attendance law r r1 F Mg six hours attend-
ance during a school day to mean attendance at one school lot several schools. The
court stated that should the Legislature change these requirements the validity of such
changes would be passed on after such enactment.
There was a dissentini opinion which cited the ;.hrton case aid which disagreed
with the interpretation of the Missouri Attendance Law by the majority.
It must be noted that this decision turns largely on the judicial interpretation of
a particular State statute rather than on the constitutional permissibility of the shared
time program of the kind presented in the Morton case.
The Supreme Court of Wisconsin in State ex rel. Reynolds u. Nusbaum 17 Wis.
2d 148, decided in 1962, in a case about school bus transportation said in pa . at page
159.160:
Pre have also given consideration to whether the benefits, con-
ferred by ch. 648 upon parochial schools, differ kind from
the situation where parochial school pupils are permitted to
attend certain specialited courses in the public schools. For
example, it has been brought to our attention that pupils of
certain parochial schools attend manual-training and domestic-
cien ce classes in the public schools. These parochial schools
benefit in that they are saved the expense of providing the
specialized equipment required for such courses, and of secur-
ing teachers trained to teach the same. However, let us assume
but not decide that permitting children, who satisfy the age
and residence requirements, to secure part of their education
74
79.
SHARED TIME
in the public schools, even though at the same time they may
be in attendance at parochial schools, does not violate sec. 18,
art. I, Wisconsin constitution. On this hypothesis it might be
argued that permitting parochial school children to take advan-
tage of transportation by public school bus, is a use of public
school facilities equivalent to attendance at manual - training
and domestic-science classes in the public schools. However,
the essential difference, from a constitutional standpoint, is
...at riding school buses is no an educational ob;:ctive of thc
state in itself, but merely an instrumentality to bring the
pupils to the public schools where they will secure a public
education. Under ch. 648, parochial school children are not to
be transported to the public schools for the purpose of 'meek,
ing any public instruction; rather, such transportation is
merely a convenience to assist them in attending a parochial
school.
Opinions of State Attorney Generals
We turn then from case law to the opinions rendered bl the attorne) generals
of the several states. I need not caution this audience about the tenuous authority of
such opinions.
Nevertheless it is obvious that school practice is very decidedly affected by such
opinions.
A table at the end of this paper gives references to the opinions rendered by the
attorney generals in the several states.
Twenty (20) of the state attorney generals' offices have not issued any opinion
of the legality or constitutionality of shared lime.
75
Rd,
UPSURGE AND UPHEAVAL IN SCHOOL LAW
Of the remaining thirty (30) states, in only 3, Nevada, New York, and Ohio,
were opinions issued officially finding the shared time concept in conflict with state
constitutional provisions. In the case of New York the opinion was issued by counsel
for the State Department of Education rather than by the attorney general.
In twen1y-one (21) states, attorney generals' opinions were issued which un-
equivocally ruled that shared time was a legal and constitutional procedure. These
states are: Colorado, Connecticut, Idaho, Indiana, Kansas, Kentucky, Michigan, Minne-
sota, !Mississippi, Missouri (but see contra subsequent ruling by Missouri Supreme
Court in Special District V. Wheeler), New Jersey, North Dakota, Oklahomc, Oregon,
Pennsylvania, South Dakota, Vermont, Washington, West Virginia, Wisconsin, and
Wyoming.
The attorney generals of six (6) states have declared that the use of shared time
procedures in the special classes involved was constitutionally unobjectionable but
did not generalize to all shared time procedures. These state were California, Dela-
ware, Iowa, Nebraska, Texas, and Utah.
Three (3) states, Arizona, Kansas, and South Dakota have rulings to the effect
that public school teachers may not constitutionally be permitted to go to non-public
parochial schools to teach. On the other hand, the Colorado attorney general ruled
that such teaching in a parochial school by a %cachet on the public school payroll was
unobjectionable as long as he wee paid with Federal funds. Th.. Kentucky attorney
general approved this practice ,.1 the provision that the teaching be under the sole jur-
isdiction and wrvision of the public school authorities. Vermont's attorney general
found such a practice unobjectionable.
While Lie particular topic did not arise in most of the questions propounded to
the attorney generals, it was ruled in 8 states that while shared time was constitution-
ally permissible its implementation in any particular situation was within the discre-
tion of the local school authorities. The Indiana opinion stressed the fact that this
76
x::81
SHARED TIME
discrclion was not to be abused. This point was not mentioned in the opinions rend-
ered in California, Idaho, Iowa, Kansas, Minnesota, Washington, and Wyoming.
The attorney generals of Colorado, Missisc;..pi, and Washington ruled that public
schools could not legally receive state aid pro 7r 1, or otherwise for shared time pupils.
The contrary conclusion was reached in Delaware, Indiana, Kentucky., North Dakota,
Oregon, and Vermont. The question apparently has not been raised in the remaining
states.
In Delaware, Iowa, Minn, rota, South Dakota, and Vermont it was ruled that
shared time pupils were entitled to school transportation. The opinion of the Iowa
attorney general stressed the point that such trati.portation did not include the trips
from one school to the other.
The summary that has just been given must be read and evaluated in light of the
feet that practically all the opinions rendered by the attorney generals were given in
response to specific questions addressed to them which were based on specific sets of
facts. It is true that some of the opinions go is and the specific question but in gen-
eral there is a quite proper tendency to stick to the issue at hand. This of course limits
the degree to which it is possible to arrive at general conclusions from a reading of
these opinions.
Discussion
It is true that the cases cited and man> of the opinions of attorney generals
hinge in large part on the interpretation of particular state statutes felt to be relevant
to the issues sought to be resolved. Nevertheless the fundamental question of the
legality or the constitutionality of shared time procedures rests on the resolution of
the following question: Do shared lime procedures contravene the provisions of the
Establishment Clause of the First Amendment to the Constitution of the United
tos?
77
'82
UPSURGE AND UPHEAVAL IN SCHOOL LAW
Who, this issue is squarely faced the attorney generals' opinions invariably refer
to Cochran v. Louisiana (1930) 281 U.S. 370; 111cCol'um v. Board (1948) 333 U.S.
203; Zorach u. Clausen (1952) 343 U.S. 306; Everson v. Board (1947) 330 U.S. 1;
and Board v. Alien (1968) 392 U.S. 236.1 will not presume to give any analysis of
these cases to this audience but I think that you will agree that the second question
that arises is: Does the concept of shared time a,nount to supporting or aiding a
religious institution?
The familiar arguments can be made for either side. On the one hand we have
the "child benefit theory" which despite some rather cavalier treatment by commen-
tators and by some state courts has never been repudiated by the Supreme Court of
the United States. Some justification might well be found for the proposition that it
has indeed been strmgthened by the Supreme Court decision in the Allen case.
On the other hand we have the view that shared time constitutes direct aid to
religion in contravention of the Constitution in that it relieves the parochial school of
the necessity of purchasing laboratory, gymnasium, and manual training equipment
and of hiring additional teachers to teach special subjects that under shared time
would be taught in the public school.
I have striven for objectivity in presenting this paperit was not my purpose to
present my personal views or my personal reasoning but rather to recount the present
status of the determination of the legality of shared time. I do not think that 1 am
departing from this objectivity when I point out that the shared time programs in
'hose few states, for example Kentucky and Vermont, which permit public school
teachers paid with tax funds to go into the parochial Khoo] to teach, sometimes in a
classroom leased by the public school authorities, may ultimately find it more diffi-
cult to sustain the constitutionality of such procedures than will the participants in
more conventional types of shared time procedures which involve the enrollment of
parochial school students on a part -time basis in certain public school courses given at
the public school.
78
83
SHARED TIME
Summa y
If a nonpublic religiously sponsored school system is to survive in the United
States something will have to be done anddcne rather soon. It is obviously a matter of
deeply felt beliefs wheCur or not it is desiral.le to continue a school system other than
a publin one.
Assuming but expressing no opinion one way or the other that it is desirable to
maintain such a system, shared time is very obviously one of the possible alternatives.
Dr. Henry M. Brickell in Nonpublic Education in Rhode bland: Alternatives for the
Future published last July has listed the possible alternatives as follows:
I. Let the nonpublic schools continue with their current limitd
degree of public control and public support.
2. Pay a cash subsidy to nonpublic elementary and secondary
schools or pupils, with the variow degrees of i.ubsidy projected.
3. Supply additional services to nonpublic schock. at public ex-
pense, as by supplying teachers, ipecialists, or materials, with
various degrees of subsidy projected.
4. Make it convenient for nonpublic school pupus to enroll part.
time in public schools to study seltcted subjects, with various
propos .ions of time and chokes of st bjec Is projected.
5. Modify public schools so that religious instruction can be given
regularly and conveniently by religious institutions, possibly in
or adjacent to the public schools.
6. Launch an elaborate publicly - supported program of research,
79
84
UPSURGE AND UPHEAVAL IN SCHOOL LAW
development, and experimentation in a search for new forms
of religious education which use modern communications
media and new patterns of personnel deployment. Search for
inventions which are powerful enough to replace current foams
,md economical enough to survive with private support.
I do not think that it detracts from the objective nature of this paper to say that
of these alternatives the most likely to escape condemnation of the courts as a viola-
tion of the Establishment Clause of the First Amendment is the fourth alternative
which I will repeat:
4. Make it convenient for nonpublic school pupils to enroll part.
time in public schools to study selected subjects, with various
proportierr of time and chokes of subjects projected.
Dr. Brickell makes the following comment about this alternative:
As Erickson (Professor Donald A. Erickson of the University
of Chicago) points out, this plan is a variant of the preceding
Oan, inasmuch as it is simply a special method of extending
services to nonpublic schools at public expense. Rhode Island
Catholics disagree on the merits of this plan. A majority of the
laymen are opposed lade a majority of those in the religious
vocations are in favor. The acceptability of this plan probably
turns upon whether students enrolled in two schools will
develop a "home base" in either school. This is particularly im-
portant for very young children. High school students may
lose their allegiance to their nonpublic school if the subjects
and activities they take in public school happen to be more
attractive than the once they take in their nonpublic school.
Acceptance of the plan also turns upon scheduling and how
80
SHARED TIME
far students have to travel.
This pan offers pupils the best of two worlds and makes it
easy for the nonpublic school to limit its responsibility to
those subjects where there is a good reason to offer instruction
different from that in public schools. It can make the most
efficient use of nonpublic funds by allowing them to be spent
directly on the subjects important to the sponsors of the non-
public school rather than causing them to operate a full-
fledged program simply in order to get access to pupils for two
or three high-priority subjects.
If I am correct in my assumption that shared time is one of the most likely solu-
tions to the present crisis in nonpublic schools sponsored by religious organizations,
then the foregoing material on its constitutionality should j.r.)ve to be important and
hopefully of value to those charged with the responsibility of making decisions in this
area.
81
BIBLIOGRAPHY
1. Colgan, Thomas II. The Present Status of "Part-Time Attendance at Public Schools inthe United States by Catholic Secondary School Students. Master's thesis. Washington, D.C.:Catholic University 1964.
2. Curtiss, Rev. Elden F. A Study of the Perceptiors of Public and Parochial School Ad.ministrators Based on Their Professional Experiences in Shared Time Programs. Master's thesis.Portland, Oregon: University of Portland, 1965.
3. DePitlo, George Barnard. Shared Time Rrlatiois of Public and Parochial Schools.Doctoral dissertation. Ann Arbor: University of Michigan, 1966. Abstract: Dissertation Abstracts27:2768A, 1966.
4. Finucan, Rev. J. Thomas. Feasability and Legality of Shared Time Education in Wis-consin. Master's seminar report. Madison: University of Wisconsin, 1964.
5. Friedlander, Anna Fay. The Shared Time Strategy St. Louis, Mo,: Concordia PublishingHouse, 1966.
6. Grimes, Kenneth F. Shared Time In CA/lobe Secondary Schools in Ohio. Master's thesis.Columbus: Ohio State University, 1965.
7. Knutson, James E. and Popovich, Peter S. The Constitutionality and Legality of SharedTime in Minnesota. St. Paul, Minn.: Authors, 1968.
8. McBrayer, Richard Tenet!. Guide Lines for the Development and Implementation ofShared Time Educational Proyrams. Doctoral dissertation. Knoxville: University of Tennessee,1965Abstract: Dissertation Abstracts 27:144A, 1966.
9. McGahan, John J. The Status of Shared Time and its Applicability to New York State.Doctoral dissertation. New York: New York University, 1966. Abstract: Dissertation Abstracts27:3743A-44A, 1966.
10. McInnis, Father Francis Leo. Administrative Problems Involved in Shared Time Pro.grams in Selected Public and Nonpublic Schools with Implications for Implementation. Doctoraldissertation. East Lansing: Michigan State University, 1967. Abstract: Dissertation Abstracts28:4855 A.56A, 1968.
82
; 87
1913.
TABLE OF CASES
1. First Commonwealth ex re. Wehrle v. Se. ol District of Altoona et al,(Pa.) 88 A 481,
2. Morton v. Board of Education of the City of Lbicago 69, (IL App. 2d 38,216 N.E. 2nd305, 1966.
3. Special District for the Education and Training of Handicapped Children of St. LouisCity, Missouri v. Hubert Wheeler, Commissioner of Education, State of Missouri et al, (Mo.)408 S.W. 2d 67, 1966.
4. State ex eel. Reynolds v. Nusbaum, 17 Wisc. 2d 148 at 159 60, 1962.
5. Smith v. Fitzgerald School District, Macomb County, Mich. Circuit Court Case No.X692848, 1969.
6. 20 Vanderbilt Law Review, 1078.
83
88
Opinions of State Attorney Generals
Alabama X1 9/16/69
Alaska X 8/31/66
Arizona OAG 10/4/65
Arkansas X 9)23/69
California OAG 61/237 3/9/62
Colorado OAG 65-3883 8/9/65
Connecticut OAG 9/3/65; OAG 9/24/65
Delaware OAG 9/3/65; OAG 9/24/65
Florida X 11/20/64
Georgia X 9/23/69
Hawaii X 9/17/69
Idahc OAG 12/7/65
Ulinofa X 9/12/66 (but see OAG 11/6152 af.d OAG 3/12/55)
Indiana OAG (Unofficial) 4/28/64
Iowa OAG 11/4/65; OAG 4/14/66; OAG 4/27/67
Kansas OAG 6/24/65; OAG 1/6/69; OAG 8/11/69
Kentucky OAG 68-150 4/3/68; OAG 68-423 8/12/68; OAG 68-585 11/13/68.
Louisiana X 9/16/69
Maine OAG 10/22/642
Maryland X 9/17/69 (but see OAG 3/23/64)
Massachusetts X 9/30/69
Michigan OAG 9/3/69
Minnesota OAG 3727 12/544 (see also OAG's 12/8/47, 4/26/51 and 8/7/59.
Mississippi OAG 1/6/69
Missouri OAG 104 2/15/63 (but set contra: Special District v. Wheeler.)
Montana X 9/22/69
Nebraska 2/25/65
Nevada OAG 278 11/15/65 (see also OAG 11/5/65 and OAG 291 12/22/65).
New Ilarnpshire X 9/19/69 (The Supreme Court of New Hamsphire has said that it will issue
en advisory opinion to the state legislature on the legality of shared time prior
to January 1970.)
11.1
Sac
Opinions of State Attorney Generals
New Jersey OAG 1965 No. 11/29/65
New Mexico X 11/23164
New York Opinion 7115/65 (State Education Department Counsel 7122165: S124/69.)
North Carolina X 9/30/69
North Dakota OAG 3/11/66
Ohio OAG 65-10 1/25/65
Oklahoma OAG 5/14/62; OAG 65-163 3/24/65
Oregon OAG 4411, 4/1/59; OAG 5702, 9/16/63; OAG 6162, 7/29/66.
Pennsylvania
Rhode Island X 10/2169
South Carolina X 9/23/69
South Dakota OAT 7/23/64
Tennessee X 9/29/69
Texas X 8/30/66 (but see OAG C.719, 7/8166.)
Utah OAG 63.066,10/30/63 (see also OAG 69-001, 1/5/69.)
Vermont OAG No. 102, 6/10166; OAG no. 104, 8/28/66; OAG No. 80, 3/3/69;
OAG No. 95, 3/3/69; OAG No. 198F, 602/69; OAG No. 289, 9/18/69.
Virginia X 9/18/69
Washington OAG 6344, No. 130. 12112164
West Virginia OAG 9/8/68
Wisconsin OAG 550124, 7/19/66 (see also OAG 530.187, 1953.
Wyoming OAG 12/2/65
lAll States masked "X" are states in which the attorney general has not rendered any
opinion on the subject of shoed time. The date following the "X" indicates the lastest date on
which this information was verified.
85
90'
THE LEGAL RIGHTS OF UNTENURED TEACHERS
By
Haskell C. Freedman
General Counsel
Massachusetts Teachers Association
About three quarters of the states have tenure laws applicable to teachers.'
The remaining one quarter of the states have no tenure laws.
My remarks today will relate to all teachers not serving on tenure.
In discussing these rights I am not going to review the laws of the fifty states. 1
suggest that these state laws relating to tenure and untenured teachers do vary. Some
states do grant non-tenure teachers some rights in connection with proposed sus-
pension and dismissal, or both. For example, the laws of California, Connecticut and
Rhode Island do provide varying degrees of procedural due process to non-tenure
teachers subject to suspension and dismissal proceedings.
Other states, such as Massachusetts, practice no procedural due process at all
to non-tenure teachers?
The spirit of the Massachusetts laws relating to the right of non-tenure teachers
and of many other states is beet exemplified in the following quotation from People v.
City of Chicago, 278 III. 318, 116 N.E. 158 (1917) where at page 325 the court stated:
"It is no infringement on the constitutional rights of
86
RIGHTS OF UNTENURED
anyone for the board to decline to employ him as a teacher in
the schools, and it is immaterial whether the reason for the
refusal to employ him is because the applicant is married or
unmarried, is of fair complexion or dark, is or is not a member
of a trades union, or whether no reason is given for such
refusal. The hoard is not bound to give any reason for its
action."
So, why this presentation?
W41, Justice Fortas in the Gault3 Case involving the rights of a juvenile charged
with criminal offenses said:
. . neither the Fourteenth Amendment nor the Bill of
Rights is for adults alone" p. 10
And in the Pred4 case, decided by the 5th Circuit Court of Appeals in 1969,
wiiich I will refer to later the Court said:
"Simply because teachers are on the public payroll does
not make them second class citizens in regard to their con-
stitutional rights." p. 655
We know that the validity and application of a state law is subject to a basic re
quirement in that it must not violate the provisions of the Federal Constitution, as
amended, including the Bill of Rights.
In all cases it is the Federal Constitution and its interpretation by the Federal
judiciary whirl controls state action.
Accordingly I am going to discuss a few cases invoking the application of the
UPSURGE AND UPHEAVAL IN SCHOOL LAW
Federal Constitutionin particularthe Bill of Rightsthe State laws relating to the
non-tenure teacher.
Many of you may be curious as to how the Constitution and the Bill of Rights
are brought into cases involving the rights of teacherbe it in the non-tenure area,
academic freedom or otherwise.
Well, they are usually brought pursuant to the provisions of a federal law that
was passed by Congress in 1871.
And that is Title 42 United States Code Section 1983known as the Civil Rights
Act of 1871. That law reads as follows:
"Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State or Territory,
subjects, or causes to be subject, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding
for redress."
One of the early cases wherein a non-tenure teacher sought the protection of
the 1871 Civil Rights law against an unilateral discharge is Bomar v. Keyes, 162 F 2d
136 (1947).
In the Bomar case the non-tenure teacher was discharged because she exercised
her option to serve on a federal grand jury and did so for about four weeks.
She was discharged. She appealed to the Commissioner of Education in New
York and applied for reinstatement alleging that she had been discharged because of
88
:'\h3
RIGHTS OF UNTENURED
"displeasure with (her) assumption of jury duty."
The commissioner dismissed her appeal upon the ground that she "had not
secured permanent tenure. Having been dismissed by the Board of Education during
her probationary period, s'ich dismissal is not subject to review."
She then brought an action in the Supreme Court of the State of New York
against the commissioner and the board of education seeking reinstatement
She alleged that she had been "penalized for her proper and legal performance
of her duties and obligations of citizenship, including the assumption of jury duty."
This petition was also dismissed on the same ground that the commissioner had
dismissed her appeal.
She then filed a complaint in the United States District Court, alleging a viola-
tion of the Civil Rights Act of 1871.
The U. S. District Court ruled against her and sustained the board of education's
motion for a summary judgment.
She then appealed to the U. S. Circuit Court of Appeals.
Judge Le rued Hand wrote the decision reversing the decision of the District
Court and remanded the case for trial.
Judge Hand ruled that the Civil Rights Act of 1871 applied to her case.
He found that if she was solely discharged for the ground that she alleged was
the causethat that decision could not standand she was entitled to a trial on the
questions raised by her.
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
She had "an expectancy of continued employment" and could not be discharged
in violation of her constitutional rightsand accordingly a trial was necessary to deter-
mine the cause for her discharge.
In the Pred5 case decided in 1969, the facts were as follows: A math teacher
and an English teacher in the Miami Dade County Junior College were each in the
Wad year of service and if reappointed would thereby have acquired tenure.
The Board of Public Instruction of Dade County, the governing board, denied
tenure to these teachers.
The teachers then filed a complaint in the United States District Court claiming
that they were denied tenure because of the activity of one teacher in the affairs of the
local teachers association and in the case of the other teacher by her advancement in
her classes of new demands for campus freedom.
The teachers claimed that their denial of tenure for those reasons constituted a
denial of their constitutional rights under the First Amendment (rights of free speech
and association).
The United States District Court in the Southern District of Florida dismissed
the complaint Without a trial and the teachers appealed to the Fifth Circuit Court of
Appeals.
The governing board argul before the Circuit Court that no one had a right to
public employment and hence relief should be denied and the District Court decision
be sustained.
The Circuit Court stated its opinion by saying:
"This is another monument to needless wage of lawyer
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RIGHTS OF UNTENURED
and Judge time and perhaps more important, client money.
For now, 14 months later, the case must go back to start the
normal process of discovery leading to the production of facts
or the demonstrated lack of them on which, either before, or
after the conventional trial, the real merits of the case will be
determined." p. 852
The Circuit Court justified its decision of reversal by quoting extensively from
decisions of the Supreme Court of the United Stag.
In response tt, the argument of the governing board that no one had a right to
public employment the court quoted:
"To state that a person does not have a constitutional
right to government employment is oily to say that he must
comply with reasonable lawful and non-discriminatory terms
kid down by the proper authorities ..."
Stochhower r. Board of Higher Education, 310 G.S. 551, 555 (1956).
". .. Constitutional protection does extend to the public
servant whose exclusion pursuant to a Astute is patently arbi-
trary or discriminatory."
Wiemann r. Updegraft, 344 U.S. 183, 191, (1956).
"The theory that public employment which may be
denied altogether may be subjected to any conditions, regard.
less of how unreasonable, has been uniformly rejected."
Key'alaan r. Baud of Regents, 385 U.S. 589. 605-609 (1967).
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
"The protections of the First Amendment have been
given special meaning when teachers have been involved.
Simply because teachers are on the public payroll does not
make them second class citizens in regard to their constitu-
tional rights." p. 855.
Keyishian v. Board of Regents, 385 U.S.D. 589, 603.
"Our nation is deeply committed to s.feguarding aca-
demic freedom."
Keyishian v. Board of Regents, 385 U.S. 589, 603 (1%7).
"To impose any strait jacket upon the intellectual
leaders in our colleges and universities would imperil the
future of our nation."
Keyishian v. Boar! of Regents, 385 U.S. 589, 603 (1967).
"The vigilant protection of constitutional freedom is
no when more vital than in the community of American
Schools."
Shelton v. Tucker, 364 U.S. 479, 4.87.
The court then went on to say:
"Equally unpersuasive is the argument that since there i
no constitutional right to public employment, school officials
only allowed these teQcher contracts to expire and thus they
cannot be liable for a violation of any rights protected by
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RIGHTS OF UNTENURED
Sec. 1983," p. 856.
"...The right sought to be vindicated is not a con-
tractual one nor could it be since no right to reemployment
existed. What is at stake is the vindication of constitutional
rights-the right not to be punished by the state or to suffer
retaliation at its hand because a public employee persists in
the exorcise of first amendMent rights. 856. (Emphasis sup-
plied)
The court then considered the basic question invoked in this case. That is, may
the state constitutionally deny a state created status beccuse of First Amendment
activities of the teacher?
The court suizested that the answer was not clearly yes or no but rather in-
volved the balancing of interests.
The decision stated that in the Pickering6 and Tinker? the Supreme Court did
state that there are limitations on speech both for teachers and students.
"The problerr," the court stated in quoting from Pickering "in any case is to
arrive at a balance between the interests of the teacher, as a citizen, in commenting
upon matters of public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its employees".
p. 857.
Again quoting from the Pickering decision the Court said:
"In order for the state in the person of school officials
to justify prohibition of a particular expression of opinion
must be able to show that its action was caused by something
93
98'a
UPSURGE AND UPHEAVAL IN SCHOOL LAW
more than a mere desire to avoid discomfort and unpleasant-
ness that always accompany an unpopular viewpoint. Certainly
where there is no finding and no showing that the expression
of the forbidden right would 'materially and substantially
interfere with the requirements of appropriate discipline in the
operation of the school' the prohibition cannot be sustained."
p.859.
Accordingly the decision of the District Court was reversed and the case was
remanded to the District Court for a trial to determine if the facts alleged by the
teachers were true
"For on the facts must rest the deter urination of
whether the denial of a continuing contract was (1) a refusal
for these actions in expression of ideas, thoughts or associa-
tion rather than permissible non-discriminatory professional
evaluation and, if so, (2) whether under the circumstances in
relation to the reasonable demands of a system of organized
responsible learning these actions were prctected. On a finding
of (1) and (2) the remedy (3) might well also depend on all of
the facts." p. 859
Because many Massachusetts superintendents are here todayand because 1 per-
sonally participated in this caseI will discuss the case of Lucia IV. Dugan, 303 F.
Supp. 112 (1969).
David Lucia started the school yea- Y68.1969 as his third year of service in the
small town of Monson, in the western part of Massaehuiett.4.
In the ordinary course of events if the school committee failed to notify him
on/or before April 15 of 1969 that he was not to be reemployed for the following year
94
99
RIGHTS OF UNTENURED
he would thereby have acquired tenure.
Further it was then commonly understood, by those familiar with the Massa.
chusetts laws, that a non-tenure teacher such as Mr. Lucia had no rights or hardly
any rights.
It was then commonly thoughtand I frequently had advised school boards
when I had represented them in my earlier careerand later teachingthat a non
tenure teacher was subject to unilateral, arbitrary suspension and dismissal, under
Massachusetts law.
David Lucia raised a beard during the Christmas vacation. He appeared in
school when classes resumed on January 2 wearing his new facial adornment which
was neat in appearance.
He taught wearing his beard ,rom January 2 to January 17and during that
time there was no disruption of his classroom or the learning situation caused by his
wearing a beard.
Early in January the Superintendent told Lucia that it was the unwritten policy
of the school committee that teachers should be clean shaven on the job.
On January 15 the superintendent handed Mr. Lucia the following letter:
"Deer Mr. Lucia,
On Wednesday, January 8, 1969, the Monson school
committee discussed tkl wearing of beards and moustaches by
male members of the Staff. It is our wish that our teachers not
have a beard or moustache while in the performance of their
professional duties.
95
UPSURGE AND UPHEAVAL IN SCHOOL LAW
"It is requested that you not wear a moustache or beard
while teaching."
Mr. Lucia continued to wear his beard.
On January 16 the school committee voted to suspend Lucia for 7 days begin-
ning Monday January 20 through January 28, in accordance with Massachusetts law.
(General Laws. C.71, S.42A)
Mr. Lucia was given no notice of the possible sIspension action nor any notice
of the January 16th meeting.
On January 28, the school committee met again and voted that if Mr. Lucia
appeared in school with his 1-card on January 29th he was to be suspended for an
additional two days. The School Committee also voted to meet January 30th for the
purp-e of voting or his dismissal. Mr. Lucia was not notified of the January 30th
g or its purpo le. On January 30th the school committee voted to dismiss Mr.
Lucia.
About fifty citizens were present at this meeting and supported Mr. Lucia.
They requested the school committee to state reasons for its contemplated dismissal
of Mr. Lucia. The school committee refused to offer any reasons.
Thereafter the school committee voted to dismiss. The school committee indi
vidually resigned from office!
Mr. Lucia then sought the assistance of the Massachusetts Teachers Astociation
and the Du Shane Emergency Fund of the National Education Association and my
firm was retained as counsel-Philip A. Mason, Esquire and myself represented Mr.
Lucia.
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RIGHTS OF UNTENURED
We filed a complaint in the United States District Court in Boston against the
individual members of the school committee and the superintendent. We joined the
superintendent as a party defendant, as under Massachusetts !aw the superintendent's
recommendation for dismissal was a prerequisite and it had been made in this case.
Our case was predicated on Title 42 United States Code, Section 1983, and we
also sought financial damages.
We argued four points:
1. That Mr. Lucia had a constitutional right under the Fourteenth Amendment
to wear his beard.
2. That his wearing of a beard was protected under the First Amendment
(symbolical expression).
3. That the Massachusetts laws providing different protection for teachers on
tenure vis-a-vis teachers not on tenure constituted unequal protection of the laws
under the Fourteenth Amendment.
4. That Mr. Lucia had been denied the procedural due process he was entitled to
under the Fourteenth Amendment.
Judge Garrity ruled for Mr. Lucia on the basis of our fourth Argument, denial of
procedural due process and said:
"Plantiff's interest in wearing a beard and his career as a
teacher is not nullified by his having been employed less than
the three years required to achieve tenure status" p. 118.
The court went on to say:
97
UPSURGE AND UPHEAVAL IN SCHOOL LAW
"The particular circumstances of a dismissal of a public
school teacher provide compelling reasons for application of a
doctrine of procedural due process" p. 118.
The court quoted approval from the Shetton8 case:
"The vigilant protection of constitutional freedoms is
nowhere more vital than in the community of American
schools."
Accordingly the court held that Mr. Lucia's suspension and dismissal violated the
due process clause of the Fourteenth Amendment and was unlawful and null and void.
He further order the respondent to pay to Mr. Lucia 32575, or (31000 for pain and
suffering and 51575 for loss of wages) plus the costs.
Another interesting case involving the alleged refusal of a school board to re-
appoint a teacher in violation of his constitutional rights is the Albaum9 case.
In this case a high school teacher sued the superintendent and individual mem-
bers of the school board to compel the superintendent to recommend him and for the
board to consider him for tenure. He contended that the superintendent's failure to
recommend him deprived him of his rights of free speech and &SI zmbly under the
First Amendment. He, likewise, sought relief under the Civil Rights Act of 1871,
Title 42 United States Code, Section 1983.
In brief, Mr. Albaum claimed that from the time of his employment in 1964 to
December, 1966 all of his evaluation reports were superior.
He went on to may that this mist stopped in December 1966 after the super.
intendent became aware that he had become contract negotiator for the teacher's
association and then did not recommend him for tenure.
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:103`1
RIGHTS OF UNTENURED
The school hoard filed a motion to dismiss the case on the ground that the New
York statutes controlled and that no Federal questions were involved.
Judge Weinstein, of the U. S. District Court, said
"Plaintiff states a claim upon which relief can be granted.
The complaint can be fairly read to allege that plaintiffa
model teacher--was not granted tenure solely because he par-
ticipated in a teacher's union in a high level capacity. Within
the confines of his complaint, plaintiff would be A/c to offer
proof that he was punished by an agency of the state for
merely inviting fellow teachers to his home to extol the virtues
of unionization and to urge them to organize.
"Since the federa. constitution protects such expression and association from
intrusion by the states, plaintiff's allegation that he was denied tenure in a state scInNol
because he exercised his rights of free speech states a cause of action over which
court has j irisdiction under the Civil Rifits Act, 42 U.S.C.S. 1983" p.
Accordir.gly the court granted the plaintiff's motion for a three judge court t.
determine the validity of the constitutional issues he raised.
The case of McLoughlin v. Triendis 398 F. 2d 287, (1968) (2CCA) raised ques-
tions similar to the ones in the Albaum case. In the Tilcndis case one teacher was i .t
offered a contract for his second year and another was dismi-sed at the end of Ili,
second year.
Both teachers alleged that these negative actions were taken by the school lx ant
because of tbeir association with the teachers union.
The distrii t court granted the school board's motion for summary judgment
99
1041:';
UPSURGE AND UPHEAVAL IN SCHOOL LAW
holding that the teachers had no right under the First Amendment to form or join a
labor union and hence the court lacked jurisdiction under the Civil Rights Act of 1871.
The Circuit Court reversed on the ground that the First Amendment does confer
the right to form and join a labor union.
The court held:
"It is settled that teachers have the right of free associa-
tion and unjustified interference with teacher's associational
freedom violates the due process clause of the Fourteenth
Amendment".
"Public employment may not be subjected to unreason-
able conditions, and the assertion of First Amendments rights
I tea, hers will usually not warrant their dismissal" p.288,289.
"Even though the individual plaintiffs did not have ten.
ure, the civil rights act of 1871 gives them a remedy if their
contracts were not renewed because of their exercise of con-
stitutional rights". p. 289.
The case was then remanded to the district court for a trial en the merits.
There is a federal case holding somewhat contra to the cases discussed above. In
Parker e. Board of Education, 318 F.2d.464 (ICCA) (1965), a probationary teacher
was dismissed without notice and a hearing and this dismissal was upheld by the
courts. 11th decision rested entirely on the written contract and the court did not go
into the constitutional questions.
The question arises as to whether the rule of law stated in the Lucia case
100
RIGHTS OF UNTENURED
involving the discharge of a non-tenure teacher is applicable to the situation where the
school board fails to reappoint a teacher for the succeeding year.
In my opinion the situations are essentially the same and in neither case can the
teacher's employment be terminated in violation of his constitutional rights unless
the balancing of interests favor the school board.
The Pred and Albaum cases both ielate to failure to reappoint as distinguished
from discharge.
Now what does all this mean? It is dangerous to reduce complex legal principles
to simple termsbut I think in this situation it can be donein any event I will try.
1. All state laws relating to tenure or the non-tenure of teachers are subject to
the Constitution of the United States of America as amended.
2. No;ie of the state laws can serve to deny a person his constitutional rights.
3. Teachers are no different than any other persons with respect to the pro-
tection afforded by the constitution.
4. Whether a teacher is on tenure or nothe is entitled to constitutional pro-
tection.
5. The Civil Rights Act of 1871 prohibits school boards from action to deprive a
personteacherof his constitutional rights.
6. The state has a constitutional right to operate the schools.
7. Therefore situations present a balance of interests.
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
8. Teacher's constitutional rights versus the state's interest to operate the
schools.
Unless the exercise of the teacher's constitutional rights in some degree inter-
feres" with the proper operation of the schools, the teacher will prevaileven if he is
not on tenure."
102
sinT.
FOOTNOTES
1 "School Law For Teachers," Nolte and Linn, 1964, p. 275.
2 Massachusetts General Laws, Chapter 71, Section 42, 421).
3 In re Gault, 387 U. S. 1 (1967}
4 Fred v. Board of Public Instruction, 415 F2d, 551 C1969 (5th CCA).
5 Id.
6 Pickering v. Board of Education, 391 U. S. 563 (1968).
7 Tinker v. Des Moines Community School District, 393 U. S. 503 (1969}
8 Shelton v. Tucker, 364 U. S. 479. 487 (19614
9 Alba urn v. Carey, 283 F. Supp. 3 (1968).
103
:l08
THE WARREN COURT AND THE PUBLIC SCHOOLS
by
H. C. Hudgins, Jr.
Associate Professor Educational Administration
Temple University
Fifty years from now history will be a better judge of the Warren Court than
contemporary critics. Better remembered and more enduring will be the decisions
themselves rather than personal attacks on the justices, often for the sake of personal
advantage or political expediency. Nonetheless, it is popular to make immediate assess-
ments of given periods of history and, more particularly, of individuals credited with
hying major impact on that period of time.
The Warren Court Era is being subjected to such scrutiny. Indeed a number of
critics made their judgments early, some as early as the Court's first major decision,
Brown 1,1 and have not changed their views since. With the retirement of Chief Justice
Earl Warren, there has been greater cause to consider the impact of the Court's
decisions during his time on the high bench.
The Warren Courtso calledmay well be a misnomer. If it implies that there
has been a stable body of nine justices sitting from 1953-1969, then it surely is mis-
named. Of the ninety-seven justices throughout the life of the Court, sixteen,
excluding the Chief Justice, served during this time. In effect, the number actually con-
stituted a sufficient force for two separate courts. Collectively, the justices of the
Warren Court served over 220 yearsranging from Thurgood Marshall's three terms to
Hu,so Black's thirty-two years. Only three justices sat during the entire sixteen years-
104
;10;9.
THE WARREN COURT
Black, William 0. Douglas, and the Chief Justice.
As fourteenth Chief Justice, Earl Warren presided over a Court which, by any-
one's standards, would be labeled cctive. In decisions affecting public education alone,
it handed down more opinions than all the previous Supreme Lourts.
Because Warren was the Chief Justice, he has been singled out for both commen-
dation and abuse, depending on one's point of view. He has been praised and excori-
ated for initiating a revolution in the field of human rights; restructuring the legal,
political, and social system; and allowing subversives to underm=ne the integrity of the
state. Those persons who give major credit or blame to Warren reveal a lack of under-
standing of the basic role of the Chief Justice. Actually, the Chief Justice is one among
nine equals in that he possesses no real authority over the associate justices. His influ-
ence is more imaginary or discrete, for he can only persuade, not dictate. One need
only to be reminded of the large number of concurring and dissenting opinions in
recent years to discern the indepe nder.t thinking of the justices.
The influence of the Chief Justice may be revealed in the Court's modus
operandi: (1) Ile presides at the closed conferences and leads off the arguments. By
focusing on what he deems to be the real issues in the case, the Chief Justice may
guide the rssociate justices, although they do not have to agree with him and may pur-
sue an entirely different line of reasoning. (2) Ile votes last. His strength here is in his
ability to break a deadlocked Court. (3) He assigns the writing of the opinion, if he
votes with the majority, to one of the justices. Justices do have, however, editorial
privileges and have been known to change their votes during the writing of an opinion.
Rather, then, than view the Court's previous sixteen years as being Warren-
dominated, it is more appropriate to assess the Supreme Court in general. In its
decisions affecting public education, what did the Warren Court actually decide?
Placed in their proper perspective, what is the significance of these decisions?
105
UPSURGE AND UPHEAVAL IN SCHOOL LAW
The Supreme Court of the Warren Era handed down decisions in three major
areas of education: segregation, religion, and academic freedom. Most vividly remem-
bered will be the decision outlawing racial segregation in the public schools. Brown v.
Board,2 was, in fact, the first important decision of the Warren Court. Subsequent
decisions were to define and help clarify standards of desegregation. The two Brown
ciecisions3 continued a pattern of judicial reasoning of the Court first made dear in
1938 in Gaines.4 The effect of Brown was far different, however, in that it dealt, not
with an individual, but with tens of thousands of persons residing in seventeen steles
and the District of Columbia.
Many people have misinterpreted the segregation decisions as being an order
to integrate all schools. Actually, the Warren Court has never outrighdy ordered inte-
gration as such; it has ordered de*egregation. But the Court has not ruled that there is
no place for an all-black or an all-white school. In a number of attendance units and
school districts in this country there is only one race. What the Court has held is that,
for purposes of assigning children to school, there cannot be racial discrimination.
Within the framework of the two Brown dck:one, the Court has been highly
consistent and predictable in its subsequent holdings. In the thirteen segregation
decisions, there has been unanimity in all but one opinion, that being a dissent by
Justice Harland on a procedural question in McNeere.5
Fifteen years after Brown I the Warren Court had had limited success in seeing
its decision implemented. Many school systems disregarded the Cr,,rt's holding,
attempted evasion tactics, or sought delays when pressed by the Justice Department or
the courts. Many citicens had not caught up with the Court decision nor accepted it
as the law of the land. For example, at the opening of school in September, 1969
fewer than 10 percent of Negro children in Alabama and Mississippi were in a desegre-
gated school .6
The Warren Court would have preferred to have handed down no more education
106
:111'
THE WARREN COURT
segregation decisions after Brown II. It had placed the responsibility for desegregation
plans with local school officials and allowed flexibility in compliance. There might well
have been more immediate compliance had the justices avoided the euphemistic stan
dard, with all deliberate speed." In the meantime, there had been covert and invidious
circumvention of the Court's edict.
The Court has followed three general patterns in seeing its segregation decision
implemented. During the eight years following Brown the justices acted with restrained
patience in giving local officials time to merge dial school systems. The Court demon-
strated its understanding of the gravity of the problem facing local school personnel in
Cooper7 where it held that one's constitutional rights cannot be suspended during
violence or the threat of violencehere at Little Rock, Arkansas High School. The
charge was made to state officials to comply in law and spirit to the same degree
that local officials had. Girard8 extended Brown in holding that an essentially private
school is subject to desegregation if its hoard is selected by a state agency.
Beginning in 1963 the mood of the Court shifted to that of immediate com-
pliance. It saw in Gong that a pupil transfer plan operated on racial factors; it held in
Mc Neese" that one does not have to exhaust state remedies before seeking relief in
the federal court. It disallowed the state of Virginia to permit a county to dose its
schools!' In 1965 it held in Rogers12 that desegregation on the basis of agrade-a-year
is too slow.
Three years after Rogers, in three 5v-irate opinions," each treating freedom-of-
choice plane, the Court's new standard was made clear: a placement plan would be up-
held only if it worka, that is, if it desegregates a school district. Its last decision in
1969 ordered faculty desegregation in Alabama.14
It has remained for Warren's successor, the Burger Court, to hold in its first
decision that the all deliberate speed" standard is no longer constitutionally accept-
*W.'S This decision announced yet rmother standard, that school districts should
107
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
desegrc ate immediately and then seek court action.
One cannot expect the segregation decisions of the Warren Court to be over-
turned. It is better for one to ask what might be expected from the Burger Court.
Many school districts in the South remain segregated; equally or far more wide-spread
is de facto segregation in many parts of the North. The Court has not ruled on the con-
stitutionality of the latter.
There are currently two cases before the Court involving education and race.
One is an appeal from a Georgia citizen who alleges discrimination in the selection of
county boards of education. The other case involves teacher dismissal M Arkansas.
Negro teachers, dismissed by their principal, were given a hearing but no opportunity
to confront their Negro principal who had recommended their discharge. One can
expect other areas of litigation, too.
The second major area of education in which the Warren Court rulings have
affected large numbers of people is religion. Although deciding a relatively small
number of cases, the Court precipitated what has probably been the greatest dis-
obedience to any of its decisions.
In holding that prayer and Bible reading as devotional exercises are in violation
of the establishment clause of the First Amendment, the Court was immediately
called "god!ess."I6 Following the Engle u. Vitale decision" of 1962 which over
ruled the Regent's Prayer, c municipal judge opened Court in 1..os Angeles with this
plea, "God bless the Supreme Court, and in Your wisdom let it be shown the error
of its ways."
Many of the Courts most vocal critics did interpret and have since interpreted
that any exercise connected with religion was to be completely divorced from educa-
tion. Actually, the justices did not take religion out of the schools. Moreover, it did
not remove all Bible reading and prayer from the schools. It did hold that state
10B
:113
THE WARREN COURT
mandated, endorsed, or supported prayer and Bible reading as religious exercises is im-
permissible. This leaves open the way for any student to pray on his own whenever he
wishes; it allows students to study about religion. An objective study of religion, as
literature or history, would meet the Court's test, 'What are the purpose and the pri-
mary effect of the enactment? If either is the advancement or inhibition of religion,
then the enactment exceeds the scope of legislative power."18
What the Court has really said is that, if a state has as one of its objectives,
making persons religious or more religious, then that purpose transcends the neutrality
principle of the First Amendment's establishment clause. This clause prohibits a state
from setting up a church, favoring one religion over another, some religions over
others, or all religions over none. The state as a state must remain neutral.
Yet, the problem is not so simple as the Court's test suggests, and the justices
recognize this. There are religious practices involving the state (even the Supreme
Court opens with a plea to the Almighty) and it is not clear where accommodation
ends and state support begins. Within the school program itself, there are a number of
ancillary practices touching on or directly involving religion: (1) assembly programs
with ministers as guest speakers, (2) baccalaureate services, (3) patriotic exercises
incorporating religious themes, (4) performances treating religious events, (5) religious
holidays, and (6) religious displays. The Court has not ruled on the legality of these.
Justice Brennan offers one solution: "To what extent, and at what points in the curric-
ulum, religious materials should be cited are matters which the courts ought to entrust
very largely to the experienced officials who superintend our Nation's public schools.
They are experienced in such matters, and we are not."19
The Warren Court handed down three other cues involving religion and the pub-
lic schools. In Flag v. Cohen2° the Court modified a long-standing precedent by hold-
ing that an individual may challenge federal appropriations on the grounds that such
expenditures violate the eseablishment clause. 'Mille the real impact and significance of
this case is yet to be felt, it is recognized that action was initiated originally to allow a
109
UPSURGE AND UPHEAVAL IN SCHOOL LAW
challenge to Tide III of the Elementary and Secondary Education Act providing for
shared services of public and parochial schools. Whereas a follow-up case may clarify
questions about the legality of non-public schools sharing welfare benefits derived
from public tax funds, the Flart decision could also give cause to a rash of litigation.
The Allen case2I created hardly a ripple of protest as compared with Euerson22
decided twenty-one years earlier. By allowing the state of New York to distribute
textbooks, at taxpayer's expense, to children in parochial schools, the Court
reaffirmed its belief in the vital role that private education plays in this country. It
recognized that these non-public schools have a dual purpose: secular and sectarian
education. Allen holds that the secular function may he ,ed by government with-
out abridging the establishment clause.
In Epperson23 the Court treated a tangenital religious question. By striking
down an Arkansas statute forbidding the teaching of evolution the justices defended a
teacher's academic freedom and held that "The First Amendment does not permit the
state to require that teaching and learning must be tailorci to the principles or pro-
hibitions of any religious sect or dognia."24 Since only two states had anti-evolution
laws, neither of which was enforced, the decision evo'-ed minimal reaction.
One might expect more litigation in the years ahead over the church-state con-
troversy than in the area of segregation. No crystal clear standard of state accommoda-
tion and cooperation has been devised which would answer a number of questions.
This problem is particularly acute as more agencies vie for O. tax dollar, as parochial
schools need financial assistance more than ever, and as r 4ic.,us heterogeneity
creates new situations and prompts suitable answers.
Two church-state cases are now before the Court. The n , -jor one involves the
long-standing practice of allowing churches to maintain tax exempt property, a case
the Warren Court passed to the Burger Court. The other chlienges a state grant of
financial assistance to church-related but not church-dom;nated colleges. In this case
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1 1 5 I.
THE WARREN COURT
Vermont statutes allow such aid to colleges and public schools for construction pur-
poses.
The third major area in which the Warren Court handed down public school
decisions was academi- freedom. Twelve decisions were rzndered, and they con-
cerned a variety of issues. They are conveniently grouped under three headings:
challenges to loyalty oath laws, resistance to investigations of teachers, and freedom of
speech for both teachers and pupils.
Five of the twelve cases attacked the legality of loyalty oath laws.25 The
Supreme Court overturned each of them for failure to describe with specificity the
kinds of behavior that are proscribed. In these decisions the Court revealed deep
division in attempting to ascertain if contemporary society needed statutes restricting
teacher's conduct. The majority consistently held that there is no real threat to the
state's security sufficient to justify the oath laws in question. Each of these laws was
negatively structured, that is, provided for a teacher to swear generally that he would
not engage in any activity or belong to any organization committed to overthrow the
national or state government by force or violence. More likely to receive judicial
unction are the positively stated oath laws; the legality of these was not a question
before the Warren Court.
Other academic freedom decisions involved also freedom of association of
teachers. Earlier emu heard by the Warren Court grew out of state restrictions on
individual freedoms in post-World War II and the hysteria during the McCarthy Era.
In refusing to allow sweeping investigations to infringe on one's personal liberties, the
Court acted as a leavening influence in holding that carte blanche inquiries may be
unconstitutional. Its first such decision, Slochower26' held that a person could refuse
to testify about activities unrelated to the infestigation. It did hold, however, that
the state may properly investigate a person's fitness for teaching.
Similarly, the Court ruled that an attorney general could not be given such
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
broad investigative powers as to amount to a denial of due process; further, a teacher's
freedom to pursue his profession is protected to the extent that he does not have to
reveal the contents of his lecture.27
The right of Congress to investigate generally in the field of education was
upheld in Barenblatt.28 A teacher's knowledge about alleged Communist infiltration
was held to be within the realm of pertinent inquiry when used as a basis for law-
making.
A different kind of investigation was treated in Beilan29 where the Court upheld
a teacher's dismissal for failure to respond to his superintendent's questions. Here,
incompetency was the basis for terminating the teacher's contract.
The final association case, Shetion,3° overturned a state statute requiring full
disclosure of membership in all organizations. It was held that such sweeping associa-
tions do not, in themselves, have any relevancy to one's fitness to teach.
The two most recent academic freedom cases treated the question of freedom of
speech of both teachers and r In Pickering 31 the Court upheld the right of a
teacher to criticite publicly his employer without threat of dismissal. This right is so
broad that it may injure the school system, or the statements may be false, although
made innocently.
In Tinker r. Des Moines32 the Court extended freedom of speech to include
pupils in the public schools. The Court upheld the right of students to protest the
Vietnam War by engaging in symbolic speech. Free speech guaranteed here was con
ditioned to the extent that it did not disrupt the school program.
Through these decisions, treated very briefly here, one may discern that the
Supreme Ccout has reaffirmed the authority of the states to deal with the problems
of public education. Where the states have refused or been reluctant to meet and robe
112
117
THE WARREN COURT
present-day problems, the Court has stepped in, always through an appeal to it, and
served as arbiter.
It is clear that the Warren Court has been cognizant of a changing society; its
decisions have been responsive to presentday problems. They reflect a very vital
interest in minority groups in both race and religion, and they underscore the value
of the dissident exercising freedom of speech and association.
The Warren Court has served this country well. At any rate, that is this writer's
assessment today. It remains to be seen if history records likewise.
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FOOTNOTES
1 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
2 ibid.
3 The second Brown decision is cited at 349 U.S. 294 (1955).
4 Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (19381
McNeese v. Board of Education of Cabala, Illinois, 373 U.S. 668 (1963)
6 New York Time3,a September 2,1969.
7 Cooper v. Aaron,358 U.S. 1 (1958).
8 Pennsylvania v. Board of Directors of City Trusts of the City of Philadelphia,353 U. S. 230 (1957).
9 Goss v. Board of Education of Knoxville, Tennessee, 373 U. S. 683 (1963).
10 McNeese, op. cit.
11 Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964
12 Rogers v. Paul, 383 U.S. 198 (19651
13 Green v. County School Board of New Kent County, 391 U.S. 430 (39681Raney v. Board of Education of the Gould School District, 391 U.S. 443 (19681Monroe v. Board of Commissioners of the Coy of Jacitron, 391 U.S. 450 (1968)
14 Carr v. Montgomery County Board of Education, U.S. (June 2,1%9).
15 Alexander v. Holmes County Board of Education U.S. (October 30,1969)
School District of Abington Township, Pennsylvania et id v. Schempp, 374 U. S. 203 (1963).16
17
18
19
Engel v. Vitale, 370 U.S. 421 (1962).
Schempp, op. cit. p. 222.
p. 300.
20 Fillet v. Cohen. 392 U.S. 83 (19681
Board of Education v. Allen 392 U.S. 236 (1968121
22 Everson v. Board of Education of Ewing Township, 330 U.S. 1(19471
23 Et:onion T. State of Mamas, 393 U.S. 97 (1968).
24 ibid., 106.
114
:119 ..*
FOOTNOTES
25 Cramp v. Board of Public Instruction of Orange County, 368 U.S. 278 (1961).Daggett v. Bullitt, 377 U.S. 360 (1964).Elfbrandt v. Russell et al., 384 U.S. 11 (1966).Whitehall v. Elkins, 389 U.S. 54 (1967).KeyIshian et al. v. Board of Regents of the University of the State of New York 21 al.,
U.S. 589 (1967).
26 Slochower v. Board of Higher Education of New York Oty, 350 U.S. 551 (1956).
27 Sweeny v. New Hampshire, by Wyman, Attorney General, 354 U.S. 234 (1957}
28 Barenblatt v. United States, 360 10.5..109 (1959).
29 Beim v. Board of Public Education. School District of Philadelphia, 357 U.S. 399 (1958).
30 Shelton v. Tucker, 364 U.S. 479 (1960).
31 Pickering v. Board of Education 391 U.S. 563 (1968).
32 Tinker v. Des Moines, 393 U.S. 503 (1969).
115
.120
RACIAL INTEGRATIONby
William T. McKnightAttorney, Cleveland, Ohio
I wish to thank George Johnson fo.. his introduction and his reminiscenses
of ow past. Since our days beginning in 1943 in Washington, we have kept informed of
each other's activities although we haven't had the opportunity of dose contact.
We have many things in common. I haven't discussed this with him, but I think
we may have a problem in common. In this world today in which colors are so impor-
tant, George's wife and my wife happen to look so much like you people that it is
rather hard for us to accept the word "blacks". My wife has been told to get out of
neighborhoods, "whitey we don't want you''.
I went back to Yale to sit on a committee three weeks ago and started talking to
the Black Student Union. "We Negroes," I said, and somebody said, "Wait a minute
we're Blacks." I said, "I am sorry. I was here forty years ago, we were Negroes then. I
apologize."
In addressing ourselves to the subject today, to me it is a little interesting as I
read the cases to see that the landmark cases are neither white nor black but Brown
and Green, and somewhere in between.
As Mr. Johnson told you, tilde did I think that the school that I attended in my
youth would become celebrated in history. I lived in a block in which we were the
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RACIAL INTEGRATION
only Negro family and at the age of 6, when my mother entered me in Buchanan
School, it didn't seem at all strange that I went to one school and all the rest of the
kids in the block went to another. There were white Germans on one side and Swedes
on the other. So I got my early education and got out of Kansas before I realized
that I was being discriminated against. In later years I hail to go back and help those
who refused to go their separate ways and insisted that they all go to the same school
if they lived in the same block.
I won't belabor my part of this presentation to this audience because I feel
about you as I feel when I appeared before the Supreme Court. I think most of you
who have followed this program through its 15 year history are probably better
advised, and even the non-lawyers can cite more cases and name the judges who
decided them and how they split, better than I can. So I will try to give you my im-
pressions of many of the legal aspects of what we began to call school desegregation.
Now as I see it, there are three principal divisions in this program, each of which
started with a landmark case. Brown us. the Board of Education was decided in 1951
and there were three things that the case stood for. (1) Separation necessarily involves
inequality. (2) Separate educational facilities are, as a matter of fact, invariably
unequal. (3) The change from a segregated system to a unitary system should be
accomplished with all deliberate speed. Thus spoke the Warren Court.
It then followed that shortly after 1954 the district courts began to wrestle with
what Brown meant. We also know that not only the district courts but the Courts of
Appeal uime up with different answers.
So we went to the next phase and that was Green tr. the County School Board
of New Kent County, Virginia, in 1968. When that case reached the Supreme Court
the Justices said the question for decision is whether under all circumstances the
school boP J's adoption of the freedom of choke plan constituted adequate ccm
pliance with the board's responsibility in accordance with Brown. Now, as ail of you
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
know, there are various plans presented to the District Court as to how to achieve, in
some cases integration in others how to end segregation, or to desegregate the system.
In Virginia as in some other states, they hit upon freedom of choice, expounding
the philosophy that if a pupil and his parents could choose to go to a white school,
where formerly he went to a Negro school, that would comply with the philosophy of
Brown in that there was not a forced separation. But the court looked into the fact of
the matter. There are statistics in the Green case to show that less than 5% of the
Negroes in this particular school district chose to go to the white school. My assign-
ment here today is to take the legal approach to this matter but as a lawyer of many
years I know that it is impossible to be purely legalistic when you are dealing with
human relations. What came out of each one of these situations depended primarily on
the philosophy of, first, the board of education as it approached the problem and
secondly, the philosophy of the judge who had to pass upon whether or not the plan
submitted did comply with the rules.
The third case which to me is a landmark case is Alexander vs. Home City
Board of Education which came up in Mississippi. This was only decided last month.
The United States Supreme Court said that continued operation of segregated schools
under a standard of allowing all deliberate speed for desegregation is no longer con-
stitutionally permissible. Desegregate now! I have said to Fr. Owens and to Mr.
Johnson that I had prepared what I thought wr3 an erudite paper two months ago in
which I was going to trace the course of thinking in each of the circuit courts
and advise you this morning where each stood. Then, along comes the surprise!
The Burger Court says, "Let's end all of it now." So there is no use in my telling
you the Courts have appealed it because they have remanded all of them. They have
kept jurisdiction and said, "Report to us what you have done by January 1." Some
of the plans went on into 1972 and 1973. They were going to do it gradually because
of the social impact on a community to radically change as %ociations which had gone
on for centuries, not decades. 1 mentioned Chief Justice Burgcr because throughout
all of the decisions you must be mindful of the fact that each court, just as the Warren
Court did in Brown, reads the same language in the constitution. The Supreme Court
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RACIAL INTEGRATION
in Pkssy us. Fergurson said that you could have separation and equality and one
hundred years later another court said, "no, you can't." This should be kept in mind
particularly by the layman who comes to us as lawyers asking for a definitive opinion
on matters. Some people think that we as lawyers ought to be able to read whatever
papers you may have in hand, wills, contracts or what have you, and say that we ought
to know the answer, "You're a lawyer." With all the wisdom of the nine justices on
the Supreme Court, they can read the same language and come to diametrically
opposite conclusions as to the meaning of the words.
One of the things to me that is most impressive was that these three cases to
which I have referred as landmark cases, all were unanimous decisions of the United
States Supreme Court. For an organization such as this, it should give great hope for
the future in working in this field that much more can be accomplished by approach-
ing the courts with reasonable insensory arguments and asking that the courts make
dead words living deeds. Now in this field, the variety of cases that went to the district
courts is most interesting. What did Brown mean and how much of a field was Brown
supposed to have covered? When the court said that the school system must be
desegregated, what about the teachers in the dual system? What about the equipment
in the dual system? What about the location of buildings in the dual system? All of
these matters have gone up to the Supreme Court for a test as to whether or not they
were included.
1 can say to you as a resident and citizen of greater Cleveland, the problem that
we are facing today is one which up until now, should not be decided by a district
court or a court of appeals or the United States Supreme Court that problem is the
plight of the inner-city when the whites move out and leave the blacks. No matter how
you draw the boundary lines for a school district, within that boundary line there arc
nobody but blacks. Your next problem as long as you have the rights of seniority
among teachers, and I am looking at Jim O'Meara now, they have traditionally been
privileged to select their schools after they have been assaulted two or three times in a
particular school which they lose. They come to the superintendent and say, "Either
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
you transfer me, or I will go to another system in a smaller town that pays more
money." This happens several times, and then you recrLit wherever you '..an and you
look back five years later at a school which had had an enviable reputation. I could
name you a high school in the city of Cleveland in which any student who had a
diploma could go to any college in the United States at one time. It is not true today
because of the quality of teachers. Now I don't know what any court could do about
it. The last time M read about this particular school in the newspaper the parents in the
district were bombarding the school demanding that three other children be pulled out
because they had promised them at the time they built a brand new school that the
total number of students would be X number, and now they had 300 more than that.
The reason they built the new School they told the people at the bond issue was to
relieve overcrowding. The day they moved in they were overcrowded. So, the people
are protesting, and what are the issues there? Boundary lines. Why a boundary line?
A school is built within an existing boundary line. It has been there for a long time. It
would be easy to say we will move the boundary line six blocks to the east. If they did
that they could switch 800 or 900 children in another school which has been the cen-
ter of racial conflict. If they would dump 300 black children there tomorrow, Jim
O'Meara knows as well as I know that we would time to call out the gendarmes. I
don't know what the Supreme Court could do about that. We have in the past 14
years been given the title of all the cases and the thinking of the Supreme Court, but I
would think that right now you are principally interested in what you are going to do
about the problem. It reminds me of a story they used to tell about Dr. Johnson, the
last president of Fisk University. He was at such a meeting as this and two of the ladies
who wanted to show they had no racial feeling and wanted to be quite friendly were
discussing what they were doing about the problem. After each had finished and one
said, "And what about you, Doctor?" He said, "I am the problem." You see you ask
for an entirely different outlook. I have my purple heart for having had the naivety
and audacity five years ago, when as the Senior Law Officer of the city of Cleveland,
the then say radical organisation of CORE had announced that it was going to stop
the construction of the new school building on Lakeview Road. They invited all those
who believed that it should be done to assemble at 12:00 noon. The Superintendent of
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RACIAL INTEGRATION
Schools and the Mayor of the city said, "McKnight, go out and see to it that that
demonstration remains orderly." I got the inspector of the district and we set about to
insure order. There were 12 Mounted Policemen and 50 foot policemen. Promptly at
12:00 the demonstrators began to assemble and march up and down very peacefully
on the sidewalk. About 3:00 p.m. it got very boring and I had heard for the first time
of an organization, RAM, Revolutionary Action Movement. They had stationed them-
selves on top of three story apartment houses on the other side of the street. They had
gotten tired of seeing this aimless marching, so they began to break bottles and throw
them at the horses and they hit the flanks and the blood would spurt and the horse.
would rear. The policemen who had ridden the same horses for 12, 15 years, loved
those horses. They wanted to charge the crowd. The peaceful marchers were on the
sidewalk. The other people were acmes the street on the buildings. To get to the
people who were throwing the bottles, it was necessary to ride down the peaceful
people, many of whom were nice ladies from the Heights who had come down to show
that they were sympathetic to the cause. I was standing out there in charge and every-
body was asking, "What are we going to do now?" I said, "Give me a bull horn!" And
this is in my scrapbook. In the Chief's words, "This crowd must disperse at once, this is
anarchy. I will put it down if I have to call out the National Guard." At that point a
Black Nationalist stuck a knife in my back. If it hadn't been for two white detectives
it would have gone on in. I just spent 5 weeks in Mary mount Hospital and I haven't
been back to stop one since.
Fortunately I was in Montreal when the July 23rd one happened last year. They
said, "We needed you," and I said, "I wouldn't have had a job because you would have
asked me to go out there and I would have gone home." As I was telling George, I have
two sisters in California. One of them and I jointly own a house that my mother
occupied before she died. I keep a half interest in that house in Pasadera and three ono
way tickets to California. The next riot I hope is on the East Side because I want to
get to Hopkins Airport on the West Side. That is only because I believe that a soldier
who has been in the trenches for 40 years is entitled to go to the rear lines and send up
the new troops. 1 am hoping among this crowd the new troops SIC here.
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
We who approach this from a legal angle only do so on the factual situation
existing in any community which we try to put into legal language. What we call
pleading follows the briefs and arguments to convince the courts who must render
final judgment. A situation does not conform to the philosophy of Brown if there
isn't a unitary system of education which provides an education for all pupils without
regard to race, color, religion, natural origin. The people in the communities have to
want such a system and want it very much. Then there will be lawyers who will
respond. They will go to the courts. Then we will be under obligation to represent
forcefully to those courts, based on this whole line of decisions since 1954, that the
goal which we seek can be achieved by an order of the court. Now before ending my
part of this and opening up to the panel and I guess to your questions, I don't want
you to think that I am placing all the responsibility on you, because as I look into the
audience I see only one other of my color. I have to admit to you that when our
daughter reached kindergarten age we moved to Shaker Heights to put her in a particu-
lar school in which we wanted her to be educated. Incidentally, at that time 1 was
Counsel of the Cleveland Board of Education. Filing through all these things that are
in my notes here and of course, and I don't say this in any manner of disdain, I was
fighting for those who were not of the middle class who could not afford to move.
Really that is what we are talking about. I am being very serious because most of us
just move and leave the problem. Many of us, which I think is worse, lose interest in
the problem. That is the course that has been followed and the CA.SCS that I cite to you
are cases that have come from Connecticut, Ohio, California. We aren't talking about
the South now. When we are talking about the unitary system of education, were
talking about wherever we live. in years past we in the North looked in a southerly
direction and said, "We don't understand those people." Someone said in one of the
conferences, and I don't say this disparagingly but to make a point, the then attorney
general, Robert F. Kennedy, now deceased, said that he was for the bill making open
housing. The chap sitting next to me said, Well if I lived in his house which cost a
quarter of a million dollars, I'd be for open housing too. You don't have to worry
about you neighbors." So I think that our worry now is about those of us who are the
great middle class. By that I am not saying that you are the Went majority, but the
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RACIAL INTEGRATION
,great middle class of Americans who do have a concern about not only their commun-
ity but the future of American and the world.
RESPONSE TO McKNIGHT
by
Dr. Gordon Foster
Coral Gables, Florida
I am primarily involved in the South although a displaced Northerner as] guess
most people in Miami are. Once in a while you find a native Key Wester and somebody
that has lived there all their lives. At the moment I happen to be working in a place
that Mr. McKnight mentioned he had a residence, Pasadena.
Pasadena is interesting. Their problems are complicated by an earthquake law
ordinance field act which makes the Board liable for housing children in buildings
that have been condemned as unsafe because of earthquake damage. It is overrun with
portables and several of their nicer schools are being ruled out.
The best thing for me to do is to just talk around a little bit the three cases
which Mr. McKnight mentioned. I certainly would agree thlt they are the landmark
decisions and throw in a few inputs in terms of my experience and what I see going on
right now. You are all aware from the radio and newspaper reports of the Fifth Cir-
cuit hearing that has just been completed in Houston. The ruling will be out, I under.
stand, about Friday. I talked to a fellow I work with quite a bit in Houston who was
one of the lawyers there and presented the Marshall County Mississippi Case. All law
yens in this series of cases were asked to be present and to leave proposed orders with
the judges. I asked him what he thought was going to come out of the case. His own
opinion, and this is just what he told me, was that probably they will follow the
Alexander Homes business very closely in terms of timing and will ask all the districts
involved to completely desegregate by December 31st.
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UPSURGE AND UPHEAVAL iN SCHOOL LAW
I was in Ft. Lauderdale Monday talking with HEW Country,Broward County in
Florida about the same problem. HEW has asked them to desegregate largely, not com-
pletely by December 31st. They iaised the issue of Judas, "Can't we have till January
28th, when we end the semester? At that point a!! the grades will be in and this sort of
thing. Then we can take a day or two off and get the job done rather than doing it
before the end of the filst semester."
The fellow from HEW seemed to be pretty happy about this, but I understand
that the feeling that this lawyer had about Houston was that the judges aren't going to
be very happy about it. They are going to ask the schools to telescope their edurn-
tional efforts so that all the grades can be in by December 31st when they gc home for
Christmas. The Christmas Holidays will be used to make the change. I think it is fairly
safe to say that certainly in the Fifth Ci:enrit you will see a tremendous riass move-
ment over the Christmas Holidays of teachers and pupils. It was felt that the judges
sitting in Houston did have some concern about bussing and about cross bussing,
particularly. The feeling was that in those cities where bussing was the common
practice you could probably see a feeling that there trould be no problem about using
bussing or even cross bussing to get the total desegregation job done. After all, I think
the NEA has reported something like 17,000,000 children ride the buss es every morn-
ing anyway. This is a fairly common phenonomen in our cities.
Thole is one case which I think has sonic interest which has just heen heard
recently in California that I thought I would mention. To those of us who have been
working in the field in the South, in a sense it is a landmark case. Schools have been
desegregated any place in the South largely by phasing OU i the black schools and get.
tang rid of the black pi inciNI m making him coordinator of federal projects or some-
thing like this. The burden of desegregation has largely been on blacks. School boa; ds
and superintendents call this the "Sunburst effect" or something. Anyway, you take
the former black chool and scatter the pupils out among the whites. This ease,
Brice versus Lanilus, in California Northern District which was heard August 8, 1969,
said that the Martin Luther King Iligh School in this district could not be closed and
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PANEL RESPONSE
the blacks bussed out, that bussing of Negro children is not in itself illegal but where
you have an apparently suitable black school facility and it's closed and the children
dispersed that this doesn't snake any sense. It does place the burden of desegregation
on the blacks and in effect the white children become sort of natives in any school
situation and the blacks who conic in are foreigners. We find this to be true in so many
districts. I think that if the courts don't begin to rule in this direction, the blacks are
going to rule for th, m, We are finding in city after city where this is proposed as a way
to solve the desegregation problems, that the blacks are taking matters in their own
hands and just saying, We aren't going to go." It is that simple. Whether the courts do
it or not, I think it is going to be done illegally if not legally.
One of the problems raised by Mr. McKnight was what to do about the inner-
city Jusii.ess. In the South most cities.also have their ghettos, their black belts. The
Adams versus Mathews case in the Fifth Circuit said that there should be no all black
schools by September of 1969. There has been some dispute in the South as to just
what this meant. The attorney for Dade County, which is Mism, of course, Mr. Bowles,
eported to the press that in his opinicn this did not include cities, that this was largely
a group of rural counties, the case was deciding and did not include cities like Miami.
The Fifth Circuit had no intention of saying that there should be no 211 black schools
in a city like Miami. His feeling seemed to be born out in some cases in Florida, For
example, in St. Petersburg and in Orlando, the district judge in both cases indicated
that this was the way he felt. At least he didn't do anything about ordering them
closed. Judge Adkins in the present Miami Dade County Case has referred to the
Adams r. Matthew case in his first ordci; but he hasn't indicated yet how he himself
feels about this. Irt was thought that the city case in Houston which was heard about
two months ago would resohe this, but it didn't. Houston, if you know the city, does
not have any large segment of blacks in one big pocket. The blacks sort of go down
through the city in a "1" shape so that it is possible to rezone and tear aid group
Houston's schools and desegregate the wIlote package withotit instituting a tternenclows
amount of bussing or cross bussing. The problem essentially wasn't redly facing
Houston, but I think it will be faced very seriously in Dad. County in the next touple
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
of weeks and perhaps in Orlando, Orange County and St. Petersburg, Phenclas County.
If the Fifth Circuit updates these. I am sure it will have to be faced in Dade. Now if
the judge for example should rule that there shall be no all Negro schools in Dade
County by December 31st, or even by Sept. 1970, then this may enable the South
somehow or other to come up with some solutions to this problem because they are
forced to, not that they want to, but there just is no alternative.
The biggebt problem that lay people have :n the South is unde,.standing the
differences between the Court procedures aid the Civil Rights Acts.Thei lawyers will
tell them and it gets in the paper that the Civil Rights Act of 1964 speciii, ally states
there shall be no bussing instituted t3 achieve racial balance. They read this and say,
"What in the hell is going on?" They say, "It's unconstitutional, it's illegal, it's every-
thing else to do away with a neighborhood school to institute bussing to achieve de-
segregation." Most white people cannot un?,erstand the differences that the Fifth Cir-
cuit has, for example, with the Civil Rights Act. In many cases in the Fifth Circuit the
judges ruled that desegregation must take place and must take place now. In so many
words the judge says, "The hell, we don't care how it's done, if you want to transport
the kids in row boats it is all right with us, oily get it done!" To many lay people this
sort of conflict is difficult to resolve. It's Imaging how many people all of a sudden
believe in the neighborhood school concept; it's become a very cherished thing.
St. Petersburg had an area where they had a particular problem with a neighbor-
hood elementary Khoo!. We presented a plan to the board about a month ago. The
thing was sort of all tidied up and about to end when one of the board members said
that he was 1' cry interested in this and he would like to read a letter he had written to
Pte ident Nixon about how he felt on the reighborhood school concept and bussing.
One of Nixon's aides had written him hack a nice letter &vying he was all for the neigh.
borhood school concept. It was a beautiful letter and opposed to bussing for any pur-
poses. Th.._ was interjected into the whole press complex that was there and made some
pretty interesting reading.
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PANEL RESPONSE
One of the difficulties in the South has been of course that about late Spring last
year the consolidated efforts of the Court and the HEW Civil Rights Division had in
many cases convinced schools that desegregation was a process that was going to get
accomplished fairly soon. Then all of a sudden the rug got pulled out from several dis
Inlets. There was a tremendous amount of political pressure brought on school super-
intendents and on school boards to delay further desegregation until the political
picture became a little more clear. Until Alexander versus Homes seemed to just
recently redirect the whole effort, things have been vet, chaotic. Boards have been
put in a very bad position in terms of doing anything, because if They' did they were
politically in bad shape and superintendents the same way of course. The whole pro-
cess had sort of been brought to a standstill up until the recent decision.
Reference has been made to the fact that in landmark decisions the court was
unanimous. There is no particular consequence, but 1 think it is interesting to note
that the Brown decision was unanimous and it was written by the Chief Justice. The
Alexander versus Homes was unanimous, but nobody wants to sign it. It was a
procurian decision. There's a change in the times, that's all.
RESPONSE TO McKNIGHT
by
Dr. Robert Simpson
Coral Gables, Florida
I really wanted to talk about another case that came up at the same time as
Darlington versus the City of Portland where they refuse(' a topless go-go dancer's
complaint that her fine by the City of Portland was a violation of her right of free
spr?ssion. That was me:e interesting but they refused to let me do much research on
it.
This is tea) an advance sheet, but new we are calling it a working copy. Our
secretary is still Lick working on it. Wei have a problem in the State of Ohio with
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
financing education adequately. Wc don't call our State universities, state supported.
They are state assisted. There is a considerable difference, about $300 a student. We
have had just a little problem of this reflected in getting our report typed properly. We
do have a corrected copy given to Mac for the conference proceedings. I am not going
to read the report to you obviously, but I would like to comment on its purposes.
One, it is to show you a chronology of this topic, Civil Rights In The Schools,
from a racial standpoint. Naturally we had to :tart with the origin of the problem.
That was in 1492. That's where all historical research starts as far as the United States
is concerned. As soon as Columbus lar.dcd the first inter-racial problem occurred.
In the question about desegregation studies, North and South, we have
some confusion here between the two Miami's. I am from Miami North, but Gordon
attended there and he is now down at Miami South. I do quite a bit of my consulting
there. On Gordon's part this is intentional because then we can give a procurian
decision and each blame it on the other Miami. No one is too sure of 1. here it
comes from and this works out fine. In fact, one of my recent visits was in a school
district in Mississippi where two of the board members took me out for a littla trip
and showed me sonic of the historical highlights. This was before we had gotten into
any investigation of the problem. They showed me where, as they put it, a colored
voting registrar had committed suicide. He must have been quite an athlete because he
hung himself with his hands tied behind his back as we found o.'t later. Also there
were two white civil rights workers who disappeared in a very dense wooded area at an
earlier date. So it is when someone has said, as some of my colleagues do, that teaching
and education must be dull. For those of you who ...ink it is, I would suggest that you
enter this consulting field. The districts in the North have a similar problem. We do not
have in the Northern districts the very few that are faced with a problem of desegrega-
tion and immediate desegregation that is present in the South. I am sure in many of the
Southern cities that Gordon was talk'ng about that the song We Shall Overcome" will
be following by "I Am Dreaming of a White ChAstmas" in many communities.
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PANEL RESPONSE
I want to comment more about 5 knctty problems that are actually facing
these districts. I comment under an unattribution policy of not saying specifically
which districts they are in but 5 comments that really are problems that we have to
face. One is an interpretation from the different circuits as to how far the affirmative
duty of a board goes in having to end segregation. In some, as you see here, it has even
gone to the point of where they have been encouraged very strongly to work with
community councils, realty boatds and so forth to end neighborhood convenants or
any other type of restrictive housing patterns.
Probably one of the most successful efforts nearby in this arca is Shaker His.,
Ohio, where they have done a fine job in working out a problem before a court order
was necessary. Yet in talking with Roger Sneed last Friday, he indicated that they still
don't hale integration. A second very important problem is one of financing the deseg-
regation plan which will work; getting the money to do it. For example, we have one
district that the only way they are going to end segregation and to accomplish mean
ingful desegregation is through a massive cross bussing program. Unfortunately, the
local people will not vote it, the state will not supply the money, and yet there is an
order to implement it. So here 6 a conflict in different state agencies, one ordering the
cross bussing plan, that is the plan that will work to end deseglegtion, and yet the
kcal tax payers and the state legislature refuse to grant the money to make the pro-
gram possible. Third, an in-service education program is highly essential with both
faculty and community. Hopefully, it can be done when you sec the hand writing
starting to appear on the wall, not when somebody has you up a,,,ainst it. The problem
of changing here is in both comm. nay and staff from de3egregation to integration.
I am not going to propose that I have the final definition of this, but to me,
desegregation is a physical dash legal concept, one that can occur by moving bodies
and changing nature's ability. Integration cannot become an actual operating value
concept without this in-service training program. Without careful analysis }oat. :an
achieve desegregation and you probably set integration back another generation.
The last statement I make is actually a challenge to our teacher training institutions. I
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
think dam few of them are doing much as far as the area of preparing teachers for
inner-city work. Now I know some are just by the (act that the school is located in a
city area, an urban area. They place their student teachers in these schools. For
example, one of the larger cities in the country fired 1320 teachers that had 1320
vacancies in what they call their inner-6ty schools. They filled each one and then
when they notified the teachers of 'heir assignment, over 300 of them broke their con.
tracts. Over 300 out of 1320 broke their contracts when they (meld out they were
going to go to the inner-city schools. Out of those that went, another 200 to 250 did
not end up the first year of teaching, did not finish it, did not complete it Many of
these were hired from universities in that area. I think we have a terrific challenge here
both for training of teachers and training of administrators.
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CIVIL RIGHTS AND THE SCHOOLS
NORTH AND SOUTH
BLACK AND WHITE,
A CHRONOLOGY
by
Robert J. Simpson
Professor, Department of Educational Administration
Miami University. Ohio
Gordon Foster
Director, Florida Consulting Center
University of Miami, Florida
Joseph L. Mills
Doctoral Associate, Miami University, Ohio
Dean Cheesborough
Doctoral Associate, Miami University, Ohio
Allan Roman
Associate Comm ltartt, Florida Desegregation Consulting Center
University of Miami, Coral Gables
I. The Early Era: From Columbus to Plessy
The early era contains primarily historic evenly 85 differentiated from legal docl
ments. Also, as a historian, the editor was compelled to start with Columbus. This
report could have started with the "Creation," but it was felt that the "church-state"
argument would only confuse the issue further. While documentation is explicit or
implicit in most events listed in the first era, other items are added to assist reaching
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
historical perspective./
Even in this early period, trends and counter-trends (i.e., "confusion") are seen.
1. Pedro Nino-a Negrowas one of Columbus' pilots (1492).
2. First revolt of slaves occurred in the area that is now South Carolina (1526).
3. In Virginia, first segregated public schools opened for Negroes and
Indians (1620).
4. Lord Mansfield, in England's Somerset case, ruled against slavery. This
prompted efforts for antislovery legislation in New England (1772).
5. Continental Congress ended importation of staves. (1774).
6. Benjamin Franklin elected fir t president of the first "abolition society," a
Quaker organization (1775).
7. "Declaration of Independence" adopted, after considerable debate, with-
out a stated position on the issue of slavery (1776).
8. Vermont becomes the first state to abolish slavery (1777).
9. Constitution of 1787 provided that the importation of slaves could not
prohibited for Twenty years. In 1808, Congress legislated against importa
lion but trade continued until the 1860 era. So.ne areas abolished sine
trade between 1808 and 1861; e.g., the District of Columbia in the COM
promise Act of 1850.
10. Missouri Compromise (1820).
II. Roberts r. City of Boston, 5 Cub. 198 (Mass., 1819) The first journal-
ized case on the topic approved the "separate but equal" doctrine for
schools. Arguments sounded circa 1969.
12. Omnibus Bill of 1850. It was also known as the Compromise Act of 1850
(sec item 9, supra).
13. First Negro collegeAshmond Institute (later, Lincoln Unbersitv)--was
established in Chester, Pa. (1854).
14. Drcd Scott v. Sanford, 19 Howard 393 (1857). Held that Ncgroc,:
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CIVIL RIGHTS
not become citizens of the II. S. nor were they entitled to the rights and
privileges of citizenship. The Court also .n.led that the !Missouri Compro-
mise, which had banned slavey in the terrii 'es, was unconstitutional.
It was one of the most di.sastroos decisions handed down by the United
State Supreme Court.
15. 13th Amendment. "Emancipation Proclamation signed (1863) Section 1
(1865). Neither slavery nor involuntary serviti le except as a punishment
for crime whereof the party shall have been dilly convicted, shall exist
within th^ United Stetes, or any place subject to their jurisdiction. Section
2. Congress shall have power to enforce this ai tide by appropriate levisla-
tion.
16 Ku Klux Klan organized in Tennessee (1865).
17. 14th Amendment. (I86S) The most important provisions of this post-Civil
War Amendment are those that forbid a state to deprive any person of life,
liberty, or property without doe process of law, or to any person the
equal protection of the law. The equal protection clause has b, en invoked
to restrain racial Fegregation practices and to maintain fair legislative
apportionment by state governments.
18. Civil Rights Act of 197C.
19. Civil Rights Art of 1371.
20. Washington &Woad Cc. v. Brown, 17 Wah (US) 445 (1873).
Surprisingly, in a railway car accommodations C'2 (pre Pless),. tl-e
"Separate but equal" principle was found to be unconstitutional.
21. Civil Rights Act of 1875 guaranteed equal accommodations.
22. Strauder v. West l'irgiMa, 100 U S 303 (1980).
23. PostWar lynchings reached peak (1890).
Thus, even in the early era, compromise, confrontatioa, and confusion existed.
Racism and black militancy can be found. As is known today, it appears that lip-
service and legislation were insufficient .fforta for achievement of erival opportunity.
Court enforcement had to be increased, and it was during the next . ra.
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
II. Increased Court Interest: From Plessy to Brown
The cases of this period indicate that the races deserved equal treatment but
such service could and, even, should. be in separate facilities: schools, vehicles or ser-
vices. A 6 tong as separate facilities were provided, federal courts tended to accept this
act by a state as prima facie evidence of equal opportunity or treatment and, therefore,
not review petitions for relief.2
24. Plessy v. Ferguson, 163 U S sr, 16 SCt 1138 (La. 1896). A state law
requiring segregation of the races ir. public transportation was upheld. It
established the "separate but equal" dcrtrine at the federal level.
Justice Harlan dissented, saying, "'fur r mstitution is color blind."
25. Cumming v. County Board of Ed. 175 U S 528, 20 SCt 197 (Ga. 1899).
First U.S. Supreme Court car applying "separate but equal" doctrine to
public schools. In 61 case, Justice Harlan, the dishenter ir. Fleshy, upheld
closing A Negro school for "economic reasons" primarily because the
request for injunctive relief was poorly stitrAttred as to appropiate
constitutional grounds.
26. Bera College v. Commonwealth of Kentucky, 211 U S 45, 29 SCt 33
(1908). The Supreme Court upheld a state statute forbid ling integrated
enrollment in a private school.
27. Gong Lum v. Rice, 275 U S 78, 48 SCt 91 (Miss., 1927). The U. S.
Supreme Court upheld school officials' assignment of a Chinese-American
child to a "colored" school as not denying equal protection of the lawas
long as equal facilities were provided.
28. North v. Alabama, 294 U S 597 SCt 579 (1935). Negroes could not syste.
matically be excluded from jury service by state action.
29. Missouri ex rel. Caines v. Canada, 305 U S 337, 59 SCt 232 (1938). The
state could maintain equal protection of law in using separate but equal
educational facilities only if such fa,:ilities eeere under its (the state's)
jutAiction. The state could not pay a Ne,-'s tuition to a college in
another state in order to satisfy "equal protection" requirement within its
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CIVIL RIGHTS
own jurisdiction. See Sweatt v. Painter, item 33, infra.
30. Alston v. School Board of City of Norfolk, 311 11 S 693, 61 SCt 75
*(Va. 1940). Equally qualified black and white teachers, though assigned
to segregated schools, must be paid equal salaries. Appeals court decision,
see 112 F. 2d 992, stands because of refusal to grant certiorari.
31. Sipuel v. Board of Regents, 332 US 631, 685 SCt 299 (Okla. 1948).
Upheld Gaines rub., No. 29, supra. Mandamas will lie to compel admission
to the school.
32. 41,14surin v. State Regents, 339 US 637, 70 SCt 851 (Okla. 1950). The
states requiring a Negro student to occupy a classroom seat in a row
specified l.st colored students, or a seat at a designated table in the library
or in the cafeteria, violated the equal protection of the laws cause of the
Fourteenth Amendment.
33. Sweet' v. Painter, 339 U S 629, 94 L Ed 1114, 70 SCt 848. A state must
provide a legal education, comparable in equality, to a Negro applicant as
it does for applicants of my other group.
14. Gonzales o. Sheet,- (DC Arh..), 96 F. Supp. 1004. On segregating school
ehildren of Mexican descent or Indians, the r,curt held that the same prin-
ciple applied in Brown applied, fr rhiriiing states from segregating school
children according to their national origin. rlere ,anguage deficiency is not
grounds.
35. Bolling v. Shcrpe, 347 U.S. 497, 98 L Ed 884, 74 Set 693, 1954. Pa'ial
segregation in the public schools of the District of Columbia is a denial of
e due process of law guaranteed by the Fifth Amendment
36. Florida ex rel. Hawkins v, Board of Control, 347 U S 971, 98 LI:A 1112,
74 SCt 783. The Fourteenth Amendment forbuls states to exclude
Negrofis becsuse of their race or color from law schools. Judgment,
vacated, and case to be decided in light of Brown.
In the preceding era, the trend goes from separate seats in a public conveyance
into separate schools to separate stab, .n the same classroom. Though this is an obvious
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
oversintplification, the prevailing attitude accepted physical rather than philosophical
concepts.
III. The Modern Era: Since Brown
The 1954 Brown decision established that the duet/ school system, separated on
the basis of race, was contrary to the federal constithtion.3 In 1955 Brown decision,
local boards and local courts were given the duty of accomplishing desegregation.4
Many subsequent cases have failed to end school segregation throughout this c untry.
Until 1964 he initiatory responsibility rested with local parties. The date when lull
integration is a matter of conjecture, possibly when we all are "tea-colored" as Philip
Wylie stated. Widen law conflicts with community policy, progress is slow and gainful.
It was ten years after Brown before legislation gave federal goternment any power over
school attendance patterns.
From the iisting of cases, infra, it is obvious that this is 81! largest era; for man),
it Ls been the longest. One school administrator taking a Z011nit in school law, was
asked, "What was the Brown ti. Tope'.a decision?" The unmet demands upon pro-
fessors of school law was evidenced in the reply, "1 think it was Topeka, 14 to 17."
37. Brown t'. Board of Eeutation of Topeka, 347 11 S 483 (1954); 74,
SO. 686, 349 U S 294 (1955). The U.S. Supreme Court in 195% overruled
the "separate but equal" that had been in effect since 1896. In 1955, the
Court ordered desegregation to proceed "with all deliberate speed."
38. RriLess v. Elliot, 132 F. Supp. 776 (1955). The Fourteenth Amendment
does not require that a state must operate racially integrated schools, Lvt
only that any school it operates, maintains, or supports, be on to all,
regardless of race.
?h. Lucy v. Adorn, 350 U.S. 1, 100 L FA 3, 76 SO 33 (1955). The Fol.-
teenth Amendment forbids states to etclude New xs, because of the race
or color, from state undergraduate schools. (The "Little Rock" case).
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CIVIL RIGHTS
90. Clemons v. Board of Education (CA 6 Ohio), 228 F 2d 853, cert den 350
U.S 1006 (1956). The Fourteenth Amendment prohibits states from
gerrymandering school attendance zones in such a manner as to effect
racial segregation in the public schools. An injunction must issue upon a
finding that such steps were taken to disguise segregation policy.
41. Jackson u. Bowdon (CA 5 Tex), 235 F 2d 93, cert. den., 352 U.S. 925,
1 L Ed 2d 160, 77 SCt 221 (1956). A school board must act promptly to
abolish segregation in the public schools and cannot be influenced by
opinions that the community is not, psychologically, ready for the change.
42. Florida cx re! Hawkins v. Board of Control, 350 U.S. 413,100 L Ed 486,
76 Set 464, reh. den., 351 U S 915, 100 L Ed 1419 76 SCt 693 (1956).
There is no reason for delay in the admission of qualified Negroes to gradu-
ate professional schools.
43. Booker v. Board of Education *(CA 6 Tenn), 240 F 2d 639, :ert. deb.,
353 U S 965, 1 L Ed 2d 915, 77 SCt 1050 (1957). The Fourteenth
Amendment forbids states to exclude Negroes because of their race or
color from state colleges, not withstrnding shortage of space.
41. Borders. v. Hippy ACA Tex), 247 F 2d 268 (1957). In implementing deseg-
regat'on w public schools, the district court must retain jdrisdiction to
require good faith compliance with its decree, even though the ghoul
board has made a prompt and reasonable start and is proceeding to a good
faith compliance at the earliest practical date, and this obtains even if com
pliance causes conflict with state and la. .
45. Allen r. County School Board (CA 4 Va) 249 r" r2c1 462, cert. den., 355 US
953, 2 L Ed 2d 530, 78 SCt 539 (1957). If a reasonable start is made
towsrd desegregation with deliberate speed, considering the problems of
proper school administration, it is not necessary to desegregate all grades
at once.
46. Orleans Parish School Board t. Bush (CA 5 La) 242 F 2d 156, cert. den.
354 U.S. 921, 1 L Ed 2d 1436, 77 SCt 138C (1957). Administrative
remedies under pupil placement or pupil assignment laws are iiadequate
137
:142
UPSURGE AND UPHEAVAL IN SCHOOL LAW
where, under th, state constitution and statutes, assignments can be male
only on the basis of separate schools for white and colored children. Such
are contrary to amendment 14.
47. Civil Rights Act of 1957. A major breakthrough occurred in positive
federal action in the field of civil rights. The Act is based on the theory
that if the Negro is protected in his voting rights, he will be in a better
position to seek reform in other areas of discrimination.
48. Civil Rights Commission was established by the federal Civil Rights Act cf
1957, and given strength by the Civil Rights Act of 1964. By 1964, it
became a national clearing house for civil nets information.
49. Kelley v. Board of Education 159 F. Supp 272 Tenn. (1958). A state
school preference law, authorizing local boards of education to provide
separate schools for white and Negro children, -illose parents voluntarily
elect that such children attend school with members of their own race, is
unconstitutional.
50. Cooper v. Apron, 358 U S 1, 78 SCt 1401 Ark. (1958). Iloetility to racial
desegregation is not a factor to be considered in determining whether
school desegregation may be delayed.
51. Shuttle:worth v. Birmingham Borad of Education, 162 F. SApp. 372,
aff'd., 358 U.S. 101, 3 L Ed 2d 145, 79 SCt 221 (Ala. 1958). It will be
presumed that a statute constitutional on its face will be so administered,
but if not so administered, it may subsequently be declared unconstitu-
tional in its application.
52. Kelley v. Board of Edveation, 270 F 2d 709, cert. den. 361 U S 924, 4 L
Ed 2d 240, 80 SCt 293 Tenn. (1959). Under proper circumstances, deseg-
regation mt% proceed, on the basis on one school grade per Dear, to he
integrated, commencing with the first grade.
53. Parham v. Dove 271 F. 2d 132 Ark , (1959). A pupil placement act con-
stitutional on its far.: cannot, by adminiatrative action be made to main-
tain or effect racial segregation.
54. rvil Rights Act of 1960. This law was designed to secure the right to vote
138
CIVIL RIGHTS
for Negroes and to meet problems arising from racial upheavals in the
South.
55. Farley v. Turner, 281 F. 2d 131 Va., (1960). A pupil placement act con-
stitutional on its face but so applied that applications by Negro children to
attend white schools are routinely denied until a written protest is filed
and a hearing is held, and no A,ason other than the applicant's race is
assigned or can be found for initially denying the aprication, and which
remits in no Negro child going to public school with a wh...te child, is
unconstitutional.
56. Taylor v. Board of Education, 294 F 2d 36, cert. den., 368 v 940 7 L Ed
339, 82 SCt 382 N. Y., (1961). A policy requiring all children to attend
the public school in their neighborhood violates the Fourteenth Amend-
ment where the basis for districting aims toward substantially segregated
schools,
57. Bush v. Orleans Parish School Board, 188 F Stipp 916, aff'd., 365 U.S.
569, 5 L Ed 2d 806, 81 SCt 754 La., (1961). State legislation freezing the
public school enrollment on a segregated basis, prohibiting transfers,
closing any school under court order to segregate, and providing that inte-
grated schools shall not be accredited, that their teachers shall hive dick
teaching certificate and that their students shall receive no promotion or
graduation credits, is unconstitutional.
58. Hall v. St. Helena Parish School Board, 197 F Supp 649, aff'd 368 U.S.
315, 7 L Ed 2d 521, 82 SCt 529 La., (1962). A state statute providing for
the closing of public schools because of the presence therein of children r f
different races is invalid if, at the same time, the state keep3 other public
schools open on a segregated basis, because such a statute discriminates
against alt children, white and Negro, in the locality where the schools are
closed.
59. Bell v. City of Gary, 324 F 2d 209 (lnd., 1963). School not at fault for
residential problem.
60. Potts v. Pox, 313 F 2d 284 Tex. (1963). Administrative remedies need
139
144
UPSURGE AND UPHEAVAI IN SCHOOL LAW
n ,t be pursued where schools are ope..ated under a policy of segregation.
Exhausted prior to seeking court relief.
61. Coss v. Board of Education, 373 U S 683, 10 L Ed 2d 632, 83 SCt 1405
(1963). The recognition of race as an absolute criterion for g-anting trans-
fers is unconstitutional. Student may not be transferred to school where
his race is in majority, if transfer is on race alone.
62. Watson v. Memphis, 373 U.S. 526, 10 L Ed 2d 529, 83 SCt 1314 Tenn.,
(1963). The concept of deliberate speed does not ccuatenance indefinite
delay in the elimination of racial barriers in schools.
63. Heart of Atlanta Motel v. U.S. 379 U S 241 Ga., (1964). The constitution-
ality of Title 11 of the Civil Rights Act of 1964, namely a provision barring
discrimination in restaurants, hotels, and other places of public accommo-
dation, on the ground that it is a valid exercise of federal power to regulate
interstate commerce, was upheld.
64. Goss v. Board of Ed. of Knoxville, 373 U.S. 683 Tenn., 83 SCt 1405,
(1963); again 406 F. 2d 1183 (6th Cir. 1969). Court o appeals judgment
was reversed since transfer plans were based on racial factors that would
forward student segregation by race. (Brown upheld) See also Robinson
v. Shelby County Bd. of Ed.
65. The Civil Rights Act of 1964 outlawed arbitrary dis(rimination in voter
registration and discrimination in public accommod ation authorized the
national government to bring suit to desegregate public facilities; extended
the life of the Civil Rights Commission; provided for wi'llholding of
federal funds for discriminatory programs established the right to equality
in employment and established a Community Relati ins Service to help
resolve civil rights problems.
66. Griffin v. Counter Svlool Board, 377 U.S. 218 (1964); 363 F. 2d 296;
239 E. Supp. 560; 296 F. Supp. 1178 Va., (1969). Schools cannot be
closed when faced with an order to desegregate; they must provide
petitioners the kind of education generally given in the State's public
schools.
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CIVIL RIGHTS
67. Bradley v. Schocl Board, 3P2 U.S. 103 (1965) 86 St.:t 224. Re: school
desegregation plans for Hopewell and Richmond, Va. Petitioners (Parents
and pupils) were entitled to fu:i evidentiary hearing on the allocation of
faculty on alleged racial basis. Cut granted. (Judgement vacated and
remr.nded).
68. Heirs v. Brownell and Board of Ed. of Detroit, 136 N.W. 2d 10 (Mich.,
1965'r Parents brought action against the school board and superintendent
for injunctive relkf against the transfer of students from one elementary
school to another where deemed administratively essential. The court re-
fused to grant the injunction. (Judgment affirmei op appeal )
69. Wanner v. County School Board of Arlingtoi County, 245 F. Sup:P. 132
Va., (1965). The court ruled that al children, colored and white, mast be
admitted on a nondiscriminatory basis. The court agreed that the place-
ment method in this case WL3 unconstitutional.
70. Yar!rough v. Haber t Wert Memphis School District No. 4,243 F. Supp.
65 (Ark., 1965). "Freedom of choice" desegregation plan constitutionally
was permiKible.
71. Deal v. Cincinnati Bo,srd of Education, 244 F. Supp. 572 (S.D. Ohie,
1965). In s de facto segregation case, the court granted defendant's
motion for summary judgment on grounds plaintiff failed to establish
that a policy of segregation or gerrymandering actually existed, or that in
any other way defendant's rights 'Hider the Constitution were violated by
the school board.
72. Offerrnann v. Nitkowski, 248 F. Supp 129 N.Y., (1965). The court reject-
ed the idea that all official actions must be "color blind" and had th't the
14th Amendment prohibits invidious dise:imination; it does not 1,1, cog-
nizance of race in a proper effort to eliminate racial imbalance.
73. Olin v. Board of Education, Union Free School District No. 12, 250 F.
Supp. 1000 N.Y., (1966). In a de facto segregation case, desegregation was
a legitimate purpose for using busea, the court held that the Stave Com-
missioner's order to reorganize attendance zones and to correct recite
UPSURGE AND UPHEAVAL 1'1 SCHOOL LAW
imbalance was not unconstitutional. Swann J. Char lottMecklenburg Bd.
of Ed. 369 F 2d 29 (4th Cir., N.C. 1966).
74. U.S. et al. v. Jefferson County Board of Edurot'on et al. No. 380 F 2d 385
196667. Now after twleve years of snail's pee progress toward school de-
segregation, courts are entering a new era. The clock has ticked the last
tick for tokenism and delay in the name of 'deliberate speed.'
75. Clark v. Board of Ed. of Little Rock School District, 369 F. 2d 661 (1966)
Freedom of choice plan was uptick,.
76. Steele v. Board of Public Instruction of Leon County, Florida, 271 F 2d
395 (1967). lotion made :o accelerate Oesegration plan granted.
77. Lee e. 1,1aeon County Bd. of Ed. 267 F. Supp. 458, Alf. 38; US 215 (Ga.
1967). Racial distributi.-,n must be considered in selee tiag school sites and
erecting buildings.
78tfason v. Flint Board of Ed. 149 N.W. 2d 239 Mich., (1967). Court held
the intent of the Board was to attempt, in good faith, to provide equal
educational opportunities by its corrections of racial imbalance.
79. Penn Human Relations Commission v. Cheater School Dist., 233 A 2d 290
(19671 The court opined that, today, convenience is the most common
justification for school attendance zones and the neighborhood schools
which encompss a homog,neous racial, and socio-economic grouping is
the very antithesis of the common school heritage.
80. ilobson v. Hansen 269 F Supp. 401 (Wash. D. C., 1967). Ability "tracks"
caused discrimination in that students were frozen into their tracks early
in their career. The District also operated "black's", "white" schools.
spending more per pupil in the latter. Affirmed in Srt.e.ch v. Hobson 408 F
2d 682 (1969).
81. Monroe L'S. Board of CommiAioncrs, City of Jackson, 83 SCt 1700 (Tenn.
1968). Free transfer plans are acceptable to the court 'anly if they work to
end segregation.
82. Sanders v. Ellington, 288 F. Supp. 937 (Tenn., 1968). Action was brought
to erjoin expansion of the Nashville Center of the University of Tennessee
142
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cm the grounds it perpetuated a segregated system. While complaint was
dismissed, defendant was required to submit a plan to implement desegre-
gation within the University.
83. Mills & U.S. v. Polk Co. Bd. of Ed. 395 F 2d 66 (CA5, Fla. 1968). Same as
Less v. Macon.
84. U. S. v. Elloree School District No. 7 Orangeburg County, S. C., 283 F.
Supp 557 (1968). Freedom of choice desegregation plan as operated in
this school district was upheld.
85. Carr v. Montgomery County Board of Education, 289 F. Supp 647 Ala.,
(1968). The school system was warned that unless its "freedom-of choice"
plan works, other means to assure integration wilt be required. Reh. den.
402 F 2d 782 (1968).
86. Adams v. Mathews, 403 F 2d 181 (5th Circ., 1968). Board has affirmative
duty to develop plans to end desegregation.
87. U. S. v. School District 151, Cook County 401 F 2d 353 III., (1968). First
northern federal decision to put affirmative duty upon board also ruled
against faculty segregation.
88. Knowles v. Board of Public Instruction of Leon County, Florida, 495 F.
2d. 1206 (5th C. 1969). Individual Negro teacher denied she had a legal
right to be transferred to a white school.
89. Freeman v. Cauld Special School District, 405 F. 2d 1153 (19691. Court
held the failure to renew contracts for six Negro teachers WAS not based
upon racial discrimination and dismissed the action.
90. U. S. v. Board of Education Lincoln Co., 295 F. Supp 1041 (Ga., 1969).
State law giving scholarsivip grants for attendance at priva'' schools
declared unconstitutional.
91. U. S. vs. Montgomery Co. Bd. of Education 2.3 I, Ed 253 (Ala., 1969).
Supreme Court ordered each school's faculty balance to approximate
district wide ratio.
92. Alexander v. Holmes Co. Board of Education. 11.S.SCt Case 632 decided
October 29, 1969. " 'All deliberate speed' fo7 desegregation is no longer
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
constitutionally permissible."
"The obligation of every school district is to terminate dual school s) sterns
at once and to operate now and hereafter only unitary schools."
S3. Henry v. earicsdale Mun. Sep. School Distri'...t 105 F 2d 597 (3 Cir., Miss.
1969).
94. CoppAge v. Franklin County Ba. of Ed. 293 F. Sup. 356 (1968). Federal
benefits (money) follow the child in daegregat:on transfers.
95. Pate v. Dade County Bd. of Ed. (S.D. Fla. Mimi Div. No. 69-1020-C1.
CA) 8/29169.
96. Green et. qt. r.. County School Bd. New Kent County et el 391. U.S. 430
(CA 4 Va. 1968). Federal district must judge segregat cm plans in terms of
effectiveness and retain jurisdiction till plan works.
97. U.S. V. Montgomery County Bd. of Ed.; Garr v. Montgomery Cour (y Bd.
of Ed. 37 Law Week 4461 (5 Cir., P 1969). District Court may require
desegregation of school faculties on quota basis equal to community black.
white ratio; ad interim may use reasonable mathematical ratio. Same as
Clereland v. Union Parish School Bd. 406 F. 2d 1331.
98. Brice v. Landil CA 61805, (No. Dist. Calif. 8/8i59). Can't close Mack
school strictly on preference to keep white school °pea and move in
blacksseemingly as 'guests'.
99. Bd. of Public Inks., Palm Beach Co. v. Colen (Secy HEW) 413 F. 2d 1201
HEW deferred of federal funds because of unsatisfactory progess on deseg
regation, was no' a "refund of assistance" under Civil Rights Act, which
would have required hearing and findingthen not violate due process.
IV. Epilog
Indeed, today, black and white blend to gray in any review of the varicus federal
circuits' positions on school desegiqation. Here ia an example of what Lloyd McCann
would have called a "frontier of law." I AM sure Bob Drury would have added,
"Teachers now have to realise that 'up against the wall' doesn't call for a spelling bee."
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CIVIL RIGHTS
The history of litigation from Plessy through Brown to the present kaleinoscope
adds to the growing misery of school leaders. While the legal-physical act of .lesegre-
gation is difficult, the value of structure of integration is finding new opposition
among many black communities who want their school separate but better and to
have neighborhood control of school governance. A 1967 Report of the United States
Commission on Civil Rights gives interesting data.6
Although integration efforts are frequently initiated in Ihe early grades, the
Report indicated that 65 per cent of the nation's black first graders attended black
schoolsi.e., schools with over 90 per cent black enrollment. Similarly, 80 per cent
of the white children attended first grade in white schools. This situation is more
extreme in the large urban areas when the center city is compared with its suburbs.?
As soon as a school hits the 50 per cent black level, the rate of "white flight" acceler-
ates till the school reaches the 90+ per cent black level. There appears lobe n..) corre-
lation between racial trends and size of the city. "Not only are Negroes concent.-ated
in central cities, but they are segregated will in them."8
The rising Negro s, hool enrollment, combined with only
slight desegregation, has produced a substantial increase in the
number of Negroes attending allNegro or nearly allNegro
schools in Southern and border State cities.9
The obvious root of the problem lies in residential patterns. While racially.
oriented zoning ordinances have long been unconstitutiona1,1° private con ve nar.ts, also
unconstitutional!' have continued to keep residential areas segregated. If one cares to
sue, damages can be collected when one is barter/ fror' a neighborhood becr.se of
racial restrictions.12
While case law has ruled against discriminatory realty practices before Brown,
community patterns change slowly, and various devices including eminent domainI3
and unwritten agreements are used.
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UPSURGE AND UPHEAVAL iN SCHOOL LAW
Another dimension is witness. d in the trend of increasing white enrollments in
the nog-public schools.
Student demands, teacher slrik,a, taxpayers' revolts needn't have the fourth
horseman of racial unrest to concern school leaders. These, plus prostate trouble, the
superintende.it can forego. The problems are here and have some common derivations.
Educationally, certain change;, have to Ix made; until they are, that law must be reliel
upor. ....-. a guide to conduct. It behooves each school leader to know his rights and
responsibilities under the law in dealing with militancy, confrontation, and even
rebellion.
The problems are insoluble under the existing confusion. Some current examples
are given. One urban district has been ordered to desegregate its schools. Because of
topographical and realty patterns, this can only be accomplished by a massive cross -
bussing progra,n. The state will not provide the funding for the added logs service nor
will the local electorate. Yet, the order still stands.
Another district is ordered to completely desegregate its elementary schools by
the end of the current semester (mid-year).
Still another district is under court restrictions in the selection of a new si.e.
Here, the problem appears to be not black or white but green: two school board mem-
bers have a substanl tat interest in one of the sitesthe most expensive one. A fourth
school board makes an effort to desegregate its schools on its own rather than act
under the onus of an imminent order. A neighborir,g district delays action through liti-
gation. The President of the United States appears to bad. Down from enforcing desq.
regation via busing program:. Next, the first school board is ousted from office and
white conservatives replace the members.
Currently, freedom- [choice plans appear to accepted by the federal admin
6dration as being a saiti.fartory action by local districts. The federal courts have ruled
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CIVIL RIGHTS
that such plans are acceptable only if they accomplish desegregation. The U.S. Civil
Rights Commission has criticized the Executive branch for the apparent slowdown and
laxity connected with desegregation efforts."
This criticism concluded:
We speak out now since we believe ou: Government must follow the moral and
legal principles and promises on which our Constitution and laws are based and meet
the high expectations to which the people of this country have addressed them-
selves.I5
The above documentation and commentary constitute a complex problem to
which school leaders and board attorneys must address themselves. Court action and
state legislation are two torturous avenues toward solutions. One student of school law
inquired if the search for a solution might not be a worthy project for NOLPE. The
question is transmitted he e.
Two items are submitted in the appendices to promote further discussion. The
first is a document distributed by black student to an urban board of education. The
second appendix represents the reaction of the teachers' group to the students'
demands.
The appendices are edited sufficiently "to protect th^ innocent," if there a.-c any
remaining.
Your reactions to this presentation are solicited.
Appendix A
Representatives of the Black Studeni Union (of X Y, and Z High ;;.':hools)
addressed the Board of Education on September l8, 1969, and presented the
l47
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
following demands to the Board:
1. Vocational training plan for grades 9 _trough 12 with the 11th and 12th
grades working part time and going to school part time (similar to the pro-
gram now in effect at "A" Co-op) and also that a job would be available
for them after graduation.
2. That five (5) adults be employed to patrol the schools and i)e paid
$100.00 p,1' week for their services. A list of names for these positions to
be submitted.
3. The right to request a budget, to keep reports on how money is spent and
the right to examine said reports.
4. Free access to the Public Addret.s system.
5. The right to add to or change any demands.
6. Freedom of movement in schools.
7. Demands must be met by dot of next Board meeting.
8. The pregnant girls that return to school be given the sawe opportuldties as
other girls. (To participate in all school activities)
9. That the 11th grade htory classes be made aware of Negro history.
10. Mandatory that all schexds have black history courses.
11. Change white history courses to black hiao:/ ((WHS.
12. All courses taught, by Aack instru:tors, to ret eive full credit.
13. Outlaw present grading systemA through F not good.
14. Eliminate fAtspension of students, help them instead, suspe id only when
necruary.
15. That pregnant girls be permitted to remain in school A.1 tong as possible.
16. Demand the name of X and Y :ligh Schools be changed to name of a
Negro person.
17. Board to meet with Student Union representatives once a month for at
least a two-hour session.
18. Request a true evaluation r.f the teachers and would like to select their
teachers.
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CIVIL RIGHTS
19. That teachers should not be given an increase in salary until they qualify
as a good teacher.
20. Black principals and black teachers should be responsible to black persons
only, no white person. People are responsible only to those they serve.
21. The Student Union to become a part of the "area" Planning Council and
have a voice in the meetings.
22. Want Mr. B. (local, black militant) as their only advisor with no inter-
ference from the Board.
Appendix B
BLACK STUDENT UNION DEMANDS
The local CIA strongly supports the immediate establishment, within each
school, of precedures that would allow for a more effective means for students to com-
municate their opinions and concerns.
Students should have the right to express their views, opinions,and suggestions
withot t reprisal. It is necessary to have student involvement and cooperation in the
development of some school policies. However, with this right these also comes a
responsibility. It is the responsibility of the students to insure that their sug,,estions
an opinions have been formed with careful thought and consideration as to their
reasonablenesc and their validity. The twenty-two demands from the representatives of
the Black. Student Union of X, Y, and Z Hiei Schools do not indicate that responsible
thought was used in their formation. Only a few of the demands bear consideration,
those b.ing:
(1) Vocational training plan for grades 9-12
(z) That all 11th grade history classes he made aware of
Negro history
(3) Al schools should incorporate black history into their
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
curriculum
The remaining nineteen demands considered in their entirety, would do nothing
but set back, considerably, what gains have b'en made to this point to insure a quality
integrated education for each student.
A number of the demands tend to ;no; separatism of black and white students
and teachers. It is unquestionab:y unrealistic to consider separatism as a means to
obtain quality education. It is imperative that people ,f our society learn to live to-
gether and judge each other, not on the basis of color, but on the basis of character;
ones individual value as a unique human being. It is for these maser's that the local
CTA urges, most vigorously, the rejection of all the demands made on the Board of
Education by the Black Student Union of X, Y, and Z High Schools, with the
exception of the three mentioned items.
T. C., President
Local Classroom Teachers' A:sn.
150
:1455
BIBLIOGRAPHY
1) Brinic, William and Louis Harris. Black and White. New York: Simon and
Schuster, 1967.
2) Kilpatrick, James J. The Southern Case for School Segregation. New 'fork:
Crowell-Collier Press, 1962.
3) Miller, Loren. The Petitioners: The Story of the Supreme Court of the
d States and the Negro. New York: Pantheon Rooks, 1966,
4) Countryman, Vern. Discrimination and the Law. Chicago: University of
Chicago Press, 1965.
5) Fuchs, Estelle. Pickett the Gates. New York: Free Press, 1566.
6) Swanson, Bert E. Th. Struggle for Equality; School Integration Contro-
versy in New York City. New York: Hobbs, Porman, 1966.
7) Williams, Robin Mu.phy. Schools in Transition; Community Experiences
in Desigregation. Chapel Hill: University of North Carolina Press, 1954.
8) Wise, Arthur. Rich Schools, Poor Schools; r!.is Promise of Equal aucational Opportunity. Chicago: University of Chicago Press, 1968.
151
FOOTNOTES
1 For a complete chronology zee Irving J. Sloan, The American Negro A Chronology andFact Book, Dobbs Ferry, N. Y.; Oceans Publication, 1965.
2 Seventy yeah? later (1969) the "suparate but better" principle walla court renew.
5 An interesting case, missed in many reports, later established that such dual systms basedupon religious preferences were also contrary to federal wsrantees, using Brown as precedent.(Moore vs. Mercer County. 330.0.2d 406 (Ohio, 1965)
4 In this paper, "desegregation" is seen as a legal action whi "integration" is visualized as apolicy (value) statement.
s See AASA Not Line, Oci.Nov. 1969, Vol. 2, No.10, P. 1.
6 The Commission, Raial Isnlation in the Public School. Vol. I, Washington.: C.0% t. rime ntPrinting Office, 1967.
7 Ihid., pp. 2.3.
8 Ibid., p.12.
9 Ibid., p.10.
10 Buchanan v. Watley, 245 U.S. 60 (1917).
11 Corrigan v. Buckley, 271 U.S. 323 (1926X Shelley a. KT1,11110 334 II.S. l (1948), anHurd v. Hodge, 334 U.S. 24 (1948}
12 Barrows v. Jackson, 146 U.S. 249 (1953).
13 Land condemnation to eliminate threat of black (amity from moving hit° a white neigh-borhood was deemed unconstitutional. City of Greve Couer v. Weinstein, 329 SW 2d 399 (Mo.1959}
14 'Text of Civil Rights Commission Statement on School Desegregation," The New YorkTimes, Sept. 13, 1969, p. C4.
15
152
A LOOK AT CITY ADMINISTRATIONby
Paul W. Briggs
Superintendent, Cleveland, Ohio
I would say that while Jim O'Meara and i do sit around part of the time on
opposite sides of the table, I think that the enterprise of education is such that there
really is only one side to the table. Sometimes what we are really talking about is dif-
ferent ways of actually improving education. Those who administer schools today
ci.,n't hive the kind of autonomy that they tell me used to be so free in the good old
days. The system of negotiation, the system of bargaining, the system of grievance
Frocedures to a great extent is nothing more than a system of communication and it is
one that has pretty much grown up wound frankness and straight forward operation.
1 think the days of intrigue and trying to play it cute have gone and in school systems
where it hasn't gone, Jim are the school systems that are in real deep trouble.
Not that we are out of trouble, but we certainly are frank and I think we have almost
exactly the same information on every problem. There is ro problem that does not get
a thorough airing at least once a month as we it down around the table and talk about
the problems that we are facing. I think it is because of those monthly meetings that
we appear to be moving along a rather smooth courts.
I am especially privileged to be on a program that allows me more time to talk
with my friend Bill McKnight than I have had for a couple of years. We talk often,
but not for very long and usually by phone. Here today we had an opportunity to be
seated together. Bill McKnight is ene of our distinguished citizens and one of the first
Cleveland attorneys that I became aeqauinted with. He is an individual that holds my
153
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
highest total respect because he is a professional and he knows what he is doing. He
and I went through some real interesting days that he will never forget and I will never
forget. Some of the overtones were racial, but Bill McKnight, and, I hope, Paul Briggs,
!coked at their problems not with a racial approach, but rather as individuals who
avempted to honestly and properly solve problems.
Now I don't know what a Superintendent of Schools can say at a meeting
this that would be important. I think that I might make the largest contribution by
taking a quick look at the administration of an urban school system with you very
briefly and pin point some of the things that we are attempting to do and some of the
real problems that we have that all of society is going to have to address itself to
before we get out of trouble.
Yes, Jim, I came out of the quiet welfare state of the North, Michigan, where I
served the school system for many years. I came to Parma, which is right up against
the city limits of Cleveland and stayed there for seven years. Then I moved into the
city of Cleveland.
The trip from Parma to Cleveland is the longest trip I have ever taken in my life.
Ii Wr a trip through an iron curtain. Although I lived rigl t next door to Cleveland, I
had not seen any of 4e problems of Cleveland; I did not understand the problems of
Cleveland; I did not issues of Cleveland; and I had no comprehension of the
magnitude or the kinds of administrative problems that an urban school system has.
That is my excuse for being crazy e:.ough to take the superintendency of the city.
I had several psychiatrists call me and offer their immediate services because
they knew that anybody who would have taken on the administrative job of an urban
school system ought to have some kind of attention. Of the ten largest cities in the
United States there is no one in tI ; superintendency who was there ten years ago or
six years ago. Over half of them changed in the last three years.
154
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CITY ADMINISTRATION
Why the turnover? I think that v e are dealing with problems and with social
change at a time when it is almost impossible to satisfy the various forces that seem-
ingly have to be satisfied. And I would like to take just a couple of minutes to give you
a profile of a city, because our city is not much different from the other large cities.
And you must understand the profile if you are going to understand the kind of admin-
istration that you must count to meet the Needs of the city.
The City of Cleveland is not muc's' different than the other cities of the North;
it is quite different from the cities of the South. When we look back over thi3 town
not too many years we find that in the center city there were residential areas that
Mere built by great prestigious families, areas where families such as the Rockefellers
lived, areas of prestige, the carriage trade. You can see the relics as you go down Euclid
Avenue. But what happened in Clevelan.1 and every place else? We left our cities. We
abandoned the central section of the cities as we attempted to flee to suburbia where
we could have larger lots, a place to park our two or three automobiles and a place for
a swimming pool. For several decades as suburbanites made their livelihood in the city,
they didn't see what happened to the old neighborhood. They didn't see what
problems were created. They didn't understand it, and they still don't. This morning,
270,000 people drove by automobile into the City of Cleveland. They started about
7:00 a.m. and they hit the peak about 8:15, If you doubt the number, hit any of our
roads coming into the city of Cleveland about 8:00 or 8:15 in the morning. About
3:30 this afternoon they will leave the city again, having made their living here today.
But they have gone over the problem or under the problem or around the problem and
haven't seen it. So let us take a look at what has happened.
Since 1950 in the city of Cleveland we have lost one hundred thirty thousand
residents, but the Cleveland schools gained 5.3,000 childrena fifty per cent increase
in enrollment while the population went down. In the area of Glensille where you
teach Jim, in 1945, there were only 5,000 students in all the Glenville elementary
schools. Somebody should have seen that something was happening because 2660
children were in the kindergarten. 13f 1965 that 5,000 in the elementary schools had
15:.)
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
grown to 16,800. The area of Hough, two and a quarter square mites, where for 50
years three elementary schools were comfortable, ended up with over 10,000 students
in eleven elementary schools. Something happened.
Well now it wouldn't be too bad if the problem was just numbers of people.
But during that same time what happened to dollar expenditures for education? We
were so busy building brand new school systems, ringing the old city with new beauti-
ful buildings. Everybody was satisfied that everything was well and good in the city.
The old leadership was absent and the new leadership was not yet developed. We for-
got about the physical as well as the program aspects of the city schools.
During the entire decade of the '40's in the city of Cleveland total capital
improvements amounted to $1,980,000. This summer in a twelve week period we
spent $12,000,000. No wonder we still have children in schools that are 113 years old
built before Abe Lincoln moved into the White House the first time. W. have schools
that were built before Edison invented the :tleetrie light bulb. We have buildings that
were built before Bell invented the telephone. We have a backlog so great that it is
almost impossible to comprehend. If we just brought the Cleveland schools physically
up to 50 years of age, it would cost us $300,000,000. If we brought it up to the
standard of the sub' .b I left, it would cost one-half billion dollars. Nobody raid
attention to thi.problt.n.
The Chamber of Commerce published fullpage ads against school bond issues
and levies. Crest prestigious citizens who were elected to the school board proclaimed
with dignity and with sanctity the "pay-as-you-go" program. The only thing was we
weren't paying and we weren't going. All right, let's not dwell too long on any one
part of the profile.
What happened the people? Since 1950 in the city of Cleveland, the number
of children coming from relief families has increased by 700 per cent. Today one-fifth
of our total enrollment are from homes that are gating one kind of public assistance
156
CITY ADMINISTRATION
or an..ther. We have seven per cer t of the total enrollment of the State of Ohio and
thirty-three per cent of the relief children of the State of Ohio. Do you suppose you
can tell those facts to the legislators? Do you suppose they take that into considera-
tion when they make out the foundation program that puts Cleveland at the bottom.
This is true in every state. Big urban centers are at the bottom as far as per capita con
tributions of the State Legislature.
What about the educational proLlems of the city? This is a city where 50,000
adults are on the records a-. being funetionelly illiterate. This is a city where our total
adult populalion, above 21 years of age, 45 per cet:t have not gone beyond the eighth
grade.
If you take a picutre of the relief roles we are heavy as far as children from relief
families are concerned. Some of our schools have over 80 per cent of the children from
relief homes. Take a further look at the relief roles. It wasn't too long ago that we
were spending $21 million a year for relief; then $25 million, and $50 million; this
year, $60 million. This year we will spend more money on relief in the city of Cleve-
land than we will on the total educational program for all elementary school children.
When we look at New York City we feel better because this year in New York City
they will spend more on relief than on the total educational program of elementary
and secondary schools. We could go on and on.
We find almost a total absence of reading materials or reading, almost a total
absence of strong cultural inputs in the area of good literature, good art, good musk.
Add to that a physical deterioration of the neighborhood and you have an ugly
environment that spells trouble. Now, at this point I would like to ray that I am not
pessimk tie about Cleveland or education in Cleveland. TI.:s may be another reason
why 1 ought to see a phychiatrist. 1 was at a pochiatri.es hoe Le tha other night. I was
visiting socially, not profesionally. He is a great guy after three martinis, and he had
had five. He talked about the ego of mankind. He said, It was great back in the good
old days when we beliet xl that God created us but then so many things have
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
happened to our ego. Some crazy scientist came along and decided that we w,ren't the
center of the universe, but we lived on a little earth. That hurt our ego.
"Then those crazy scientists came back again and shot another great big hole in
mankind. They said God didn't create you; you came from monkeys. Think what that
did to the ego of man who thought he was something special that God had created.
But do you know what is happening to us today? 'We are being restored.
We sent : course of guys to the moon and they started walking and you know
they didn't see any footprints and they didn't see anybody. We got some spooky
equipment up on Mars. And there is nobody on Mars.
We are getting ready to send some more equipment beyond this sphere and you
know we are going to find there is nobody out there either.
"We are all alone, we're God."
Well something has happened to the ego of kids that come through r system of
total isolation, total poverty, total squalor, and total absence of the fine cultural
inputs that should be put into the early lives of children.
What is the role of the school in all of this? I tell you today the role of the
school is more than teaching reading, writing, arithmetic. Ar.d anybody that thinks the
role of the school today is teaching re.cling is absolutely out of his cotton pickinb
head. It's not that.
The kids that are not learning to read are not learning because they don't have
good teachers or the system of reading is rotten. They are not learning to read because
their K e of life has not yet become relevant to the point that they need to read and
reading is important.
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CITY ADMINISTRATION
I don't speak German; my mother did, but I don't. Why? Because I have no rea-
son to speal, or read German, none whatsoever. I never have had a reason; but let me
tell you if I found it necessary to read German to make a living or to communicate
with my neighbors I would be doing it in a few weeks because it would be relevant.
Reading isn't relevant to too many children in the inner-city. It is time we stop-
ped beating the reading teacher. We can take the reading teacher who does the best
job in the United States, reduce her load by one-half, and put her with a group of
children that don't know reading as a way of life and the kids will cheat. There will be
very lit4le relationship between the quality of the instruction and the amount of
achievement.
But I tell you what will improve reading. When we in public education with the
support of a total society begin attacking the problems that I have just identified here,
when the public school as the one common agency begins to be the organization that
attacks problems of unemployment and isolation and cultural deprivation and does it
effectively, everything else is going to start fitting into place. The time has come when
society should pull itself together. Those who think that their position is that of need-
ling and critidzing and tearing down should be given less attention and less financial
support. If the few people with talent in those groups could be persuaded to help
make the system work, then we would start seeing things moving. I would like to see
some thrust on the part of the legal profession in the direction of helping to change
and improve society rather than stand by thinking it's smart to criticize ever), single
thing that a group of people in education are trying to do for children.
I am encouraged this afternoon because I am beginning to see evidence of
change. I am beginning to see evidence of change in the pattern of crowding in the
inner-city, in the areas of Hough, and Glenville. I find that the enrollments in elemen-
tary schools in the last (nut years have dropped by twenty and twenty-five per cent.
The horrible push forward atit we have had for twenty yeas in enrollment has not
only leveled off, but has dropped in on location by twenty per cent and in another by
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twenty-five per cent.
I am ence waged from the standpoint of employability and actual employment.
I see some success stories on the horizons when we take our high schools and make
them into schools that hay, two exit doors, one leading to coll,gc and the other to
immedia.e employme, t I see in Cleveland our business and industrial community
opening its doors to inner-city employment. A year ago over ninety per cent of our
graduates from the five inner-city high schools were employed; the same thing was
true &gain this year.
This year's graduates from the five inner-city high schools will take back into
the inner-city for the first year of employment better than $5 million from payrolls;
not relief money, but payroll irJney. This is green power. If we get just live years of
this trend with an additional $5 million of new money going into the in. ,r-cky each
year, some changes are going to take place.
When I take a look at what happened during the last five yeaes as far as
admissions to college, I find that there has been an increase of over one hundred per
cent of students from our inner-city high schools actually enrolling in college.
lake a look at what happened to the amount of scholarship money available.
Five years ago it was less than one half million dollars; this year, three and a quarter
million dollars; next year it will reach $4 million.
Then look at what is happering to little children as far as books that they are
taking home. Five years ago we didn't have any libraries in the elementary schools of
Cleveland. Today we have libranet in every one of them. Just last year three and a
quarter million books went home with little children. Don't tell me they are not read.
ing now. This year our aim is 5,000,000 or more.
Take a look at what's happening to our older buildings. In five years we have
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opened eight hundred new classrooms, enough to take care of double the er rollment
of Shaker Heights. We will open that many more in the next five years.
Today we have one thousand more teachers and professionals than we had five
years ago. Five years ago we had a shortage of four hundred teachers. This year we
interviewed ten thousand young people, hired twelve hundred, and could have hired
three thousand. Part of this success is due to the kind of sal4ries we get negotiated
with the Union. And Jim O'Meara started to negotiate for better salaries right here
at the table now.
I see some progress when I look at the way people are beginning to react. Don't
listen to the loud voices because they are in a minority; the biggest voice represents
the smallest following. The people with the answers don't have the problems. If we
listcn to what the small people are saying and listen to the small voices, we find almost
a total unanimous approval of doing something for our cities and for the children of
the cities. In six years of service at the city of Cleveland the tax rate for school pur-
poses has gone up one hundred pet cent by a vote of the people. Now this tells you
that people want change; they want quality education. I think what we have got to do
is aggressively attack the targets of toworrcw in our cities. We have got to ask our
selves which targets can education saccessfutly attack; what are the new alliances we
have got to have as we attack the problems. I predict that the cities of this country ran
get themselves out of trouble; that we car, have some success stories in America; that
we can produce a better society; that we can avoid, if we want to, the polarization that
is now beginning to occur. I am telling you today it cannot be done if we listen to the
voices of attack, if we listen to the voices of destruction. It cannot be done by closing
our schools, by decreasing our expenditures for education, or by attempting to use the
school simply to promote one person's or one organization's viewpoint.
Now we have great problems, but none of the problems are so great that they
cannot be solved. Man usually hat had his greatest hours during his periods of greatest
crisis. The crisis of our irSan cities were never so sever .t as it is today. The crisis calls
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for a new kind of coalition of hieler edacann with elementary and secondary educa
tion. We reed the help of the scholal i; we need the help of the professions; we need
the time of he housewife; we need the understanding and open door of business and
industry; and we need the kind of support that can come from interested, concerne1
citiz ns. Education nteds the support of a total society and, if it can get this, I think
we can pull ourselves out of trouble.
This is how one city superintendent maintains at least a little degree of sanity
and the ability to go home at night and sleep and get ready to come back tomorrow to
face Cie problems because I am now seeing evidence that a total city wants what is
good, what is in the right direction and that there is chance of buccess.
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CONSTITUTIONAL PROTECTION OF PROTEST
by
William Van Aistyne
Professor of Law, Duke University
The burden of my opening remarks is rather light and simultaneously inadequate
for reasons observed in a quotation from Oliver Wendell Holmes, Jr., that "general
propositions do nct decide concrete cases." General remarks by a speaker tend not to
be responsive to the specific concerns of members of the audience. But recognizing
that is so, 1 merely propose therefore, in these introductory remarks, to try to state
certain general propositions now sufficiently developed by the federal courts that we
can understand at least the ground rules against which we may then test more particu
tar situations. Then to the extent that you may be disappointed in the seeming general-
ity of my opening remarks, I would count on the panelists on your own initiative to
raise specific issues to which I would try to respond with more appropriate directness
than is possible in the presentation of an overview.
I want therefore, briefly to try to toue'd upon roughly four different considera-
tions. The first of these has to do with the general extent to which freedom of speech
as explicitly protected in the first amendment to the Constitution is carried over and
made applicable to public schools through the due process clause of the fourteenth
amendment, that clause which provides that "no state shall deprive any person of
liberty without due process." Secondly I want to each the extent to which the
requirement of more regular procedure or the right to a hearing, may now be newly
infused as a requirement, a prerequisite to disciplinary action which may be contem
plated against any student alleged to have violated a valid rule. Then even more briefly,
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I want to touch on sonic other items. One has to do with the special problem of mass
misconduct. That is to say alleged disciplinary problems involving sc, large a number of
people under such calamitous or seemingly emergency circumstances th:t new
elements are introduced that may make it appropriate to consider some things which a
school would not be free to do otherwise, as using summary process or peremptory
process which would not be constitutionally tolerable if we were dealing with more
sedate times and merely an occasional infraction by an individual student. Finally
because much of my own background in this area is drawn from litigation at the uni-
versity level, I want ultimately tc acknowledge some tentative distinction may still
endure, and thus make feasible a degree of control at the high school level and surely
at the primary school level which would be felt constitutionally intolerable in the con
text of the public university situation where one is dealing with more mature students
and dealing with an institution which has a more specialized academic function and
therefore correspondingly less of a general in loco parentis function.
With respect to the first item, I mean to suggest that the trend of federaldecisions and the evolution of constitutional law describes, in regard to the freedom
of expression on campus (even embracing symbolic conduct such as wearing of badges
or the distribution of leaflets or other varieties of political communication), roughly
three kinds of restrictions of the prerogatives of the public school's authority and
they are these. First, the requirement acting only on the basis of rules as distinct from
acting upon a claim of inherent authority alone. The notion I am trying to suggest is
that to the extent that students are to be subject to severe sanctions for political
activity, the action sought to be brought against them in a given context must be taken
primarily on the basis of previously published standards. The school board must under.
take to review the situation to establish the areas of proscribed and prescribed conduct.
lhe courts have become reluctant to accent claims of inherent authority where a given
school official does not act pursuant to a preordained rule that has ken fashioned by
a Board of Education, but where the school official composes the rule on the spot
suitable for the occasion, which he felt retrospectively was somehow disruptive or
distasteful. The notion of ad hoc rule-making, where the rule is more or less conjured
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by the man who then presumes to impose his authority against the student, carries
w..% it a trace of a very old vice: the vice of ex post facto law, the invention of a norm
which is established only after the conduct sought to he punished has already occurred,
whereas the conduct had to take place at a poiit in time where the individual engaging
in it had no particular reason to know one way or another whether that which he
proposed to do would necessarily be rcgirded as forbidden. Anothc ivart of the con
stitution itself condemns the use of ex post facto laws as a general criminal mechanism
in organized society. It cannot come as a great shock, therefore, that the courts may
also require a greater degree of rule-making circumspectness on the part of Boards of
Education. They should act in advance to describe with reasonable clarity and
specificity those norms of conduct which they expect their litutlents to observe or
those fields of endeavor which they expect their students to avoid. The absence of
such a rule would necessarily make any subsequent disciplinary action reasonably
vulnerable to being set aside by judicial decision. But that is an easy first step,
although I would suppose as one tries to think about putting together a so-called
campus code or a school board code it then becomes mechanically a very difficult
and trying subject. And I do not mean to suggest that the Board of Education is
under any obligation at all equivalent to that exercised by a legislature to the extent
that it would have a detailed handbook resembling a whole collection or codification
of state statutes, but that at least the zones of prescribed conduct be described with
sufficient clarity, that no one can subsequently claim that he was innocently misled in
supposing that that which he proposed to do be regarded as condoned or innocent by
the institution which subsequently sought to take action against him. There is a
necessary compromise between the need to know and the feasibility to provide that
notice.
As one moves then to the second level of political action ard tries to consider
the constraints of what it is that the school may not forbid the sh.dents to do, I think
one may best address the subject in terms of two very conventional legal formulations.
Where the area of activity has to do with political expression at least (and I do not
want to generalise beyond the spedfic subject of political expression), the usual
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constitutional formulation runs something like this: "That a state and therefore its
boards of education may curtail political expression only to the extent that it is
prepared to show that the use of the expression, under the particular circumstances,
would create a clear and present danger of a substantive evil which the state is entitled
to avoid." Most people readily understand the first part of the testthat which
requires that the danger be dear and presentthat one not try to forbid for instance,
the use of political activity on eampus, the distribution of !carets, the holding of
assemblies in spaces which are physically suitable for holding of assemblies, that they
not attempt to justify a condemnation or prohibition of political activity, merely
according to some remote rpeeulotionr that at some later time, if not curtailed at
some level, it might escalate into a major act of disruption. I think the words them-
selves are plain and sensible enough with the requirement that alleged danger be
"clear" by a high probability and "present", reasonably imminent, as a condition of
punishing the conduct. The difficulty, the principal misunderstanding, has come from
inattention to the second part of this formulation. A clear and present danger of a
substantive evil which the state is entitled to avoid immediately raises then the more
difficult question because something must be assumed. What sort of things is the state
not entided to avoid? What kind of standards is the school not privileged to have at all,
irrespective of the clarity and immediacy of the "danger"? The basic limitation is an
ideological limitation, that is to my this, that the evil may never he described in terms
merely of ideologythat a school board no more than a state legislature may seek to
suppress a point of view solely because of misgiving or anxieties or apprehensions or
antagonism to the subj2et matter or idea which is thus presented. To take a specific
illustration, for instance, (and an easy one, and indeed and I would hope in this
company it would be a frankly uncontroversial one): even if an overwhdming majority
of parents and all the members of the school board were so persuaded that it would be
educationally disastrous for young students at the high school level to be expeAed to
those who ere hostile to current foreign policy or the military committment
Vietnam, that they would seek to ovoid what they think of as educationally damagin3
or ideologically damaging to the student by forbidding them to listen to speakers or to
receive literature or to hand out leaflets intensely critical of that foreign policy. That
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is not the kind of evil which the state is entitled to avoid. The Constitution itself has
withdrawn from the state the power to control the nature of tin ideas which are
allowed free competition for popular approbation to determine that which will
ultimately prevail, in the market place of ideas. To put it differently, and again to
take the thought from Nit. Justice Holmes: the, best test of truth is the power of a
given thought to get itself accepted in the competition of the market and that truth is
the only basis upon which our wishes may safely be carried out. The emphasis of his
statement is on the adjective "that", rather than on the word "truth", that is to say
that in a democratic society, whatever can command popular support after freely
competing for that popular support without inhibitions or censorship from tr.usc who
have misgivings about the nature or essential vice or evil of the idea, is entitled to have
its chance. Its triumph in the competitive market place is the democratic acid test as to
whether or not it was the better idea. But one can go on, he need not take something
as easy to digest as freedom of dissent on American foreign policies. One may speak
even of freedom of dissent with the regard to the use of certain drugs so long as the
presentation is confirvtd to communication that remains in the realm of ideas as
distinct from inciting a violation of the law, it may not constitutionally be described
as a substantive oil, the acceptance of which can be sought to be avoided by censoring
those who hold it. In short the school board, like the state itself, must not punish the
peaceful expression of an idea sought to be received by those willing to entertain
The corollary observation drawn from constitutional !ay. is this, that notwithstanding
the protection of free speech, rules which can be described merely as restricting
opportunities or expression to a reasonable time and reasonable places and to be
conducted in a reasonable manner will generally be sustained as a matter of
constitutional law. Again to take a very easy illustration: school board rule which
would place off bounds the particular location of the principal's office would be
sustained by the court on the basis that the peremptory use of that office tven for
purposes of Audent political communication is K fundamentally incompatible with
its primary use as a place where the principal must ordinarily work, that without
infringing speech on an ideological basis, one may fully withdraw that location from
use as a political forum. I begin by taking this absurd and easy illustration, however,
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recognizing that one works on a spectrum, that as you go to other compartments
within the campus itself you may arrive at a different conclusion. Even the corridors,
for instance, of an academic building may not be deemed unreasonable places for all
forms of political communications if the particular mode of communication is not
otherwise disruptive or frankly incompatible with the customary use of those corridors.
Thus, for instance, an attempt to distribute a given leaflet by a single indivich al who
does not congest the traffic flow in the corridor may be protected. On the other hand,
attempts to stage an assembly or a congestion of numbers of people in the corridor
may itself be regarded as such as unreasonable manner of politics] commuricatio, or
so inappropriate, given the time when it is proposed, that a neutral campus rule that
tries to preserve order and tries simply to preserve aspects of the various facil
ities for their customary use is certainly tolerable a. a trade-off against its mar-
ginal incursion on freedom of speech. Thus the two principle limitations are
s clear and present danger of an avoidable substantive evil and rules which are
limited to the neutral control of political communication according to reason-
able time, place, and manner. I should hope to get more specific with you, per-
haps as we work into other illustrations. I hope it is clear from what 1 have said
that since ideas may be cornmunic. ted other than by written or spoken means,
these observations necessarily are meant to apply to so-called "syneholic" con
duct, whether it Las to do with wearing of badges or other techniques of com-
munication not involving the conventional modes of oral or written expression.
Assuming that the rules themselves may be valid, and that there are indeed
rules to speak of, and that a given student is felt to have violated that rule, we
necessarily rech the next phase of this dismission, which is, 'What is the extent to
which a exlent is entitled to a trial-like hearing, or indeed to any hearing at all
before a decision of discipline is made?" In answering that overall question one has to
make several distinctions. The first one is this: that the quality of procedural !lue
prceea is not a single, frozen, stylired thing. There is no one way of describing what
is required as a mattes of constitutional law before sanctions are imposed by various
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state instrumentalities upon one person. The quality of procedural due process varies
as a legal requirement most especially according to the gravity of the sanction and the
extent of jeopardy in which the individual is put. To take an easy illustration, so that
we can get away from the notion that there is something built into the law that
imposes on every school board or every court a single model that is absolutely rigid
(with hearsay rules and court stenographers and jury trials and all the rest), consider
these two cases: on the one hand, the most severe sanction that we knowdeath--a
capital penalty case, in a criminal court and on the other hand a sanction that can't
amount to more than oral reprimand or a mere counseling by a school official.
Before a man can be sentenced to death in a criminal court, the state must proceed not
only under clear and valid statutes but he must be charged formally and an indictment
returned by a grand jury. lie is entitled to be represented by counsel. lie is entitled to
be tried by a jury of his peers, the right of confrontation is applied, an endless stream
of indiscreet procedural requirements are all built in, climaxed of course by the high
burden of proof which the state must carry; the man is not to be convicted unless his
guilt has been established beyond a reasonable doubt. To take the other extreme, in
the school setting where the only unction in jeopardy of which a student may stand is
the prospect of an oral reprimand or even social probation for a semester, or reference
to a counselor whom he must see, the immediate consequences to his ultin.ate career,
to his employment options, to his future educational opportunity are so diminished,
so absurdly lighter in comparison, that that form of discipline, if it desen es to be
discipline at all, can necessarily be pursued with completely relaxed informality. None
of the high procedural safeguards, which would necessarily apply in the criminal ease,
need be observed in this cue. When, however, to speak specifically of the more
conventional form of discipline in today's school problems, where the sanction is at
least as grave as suspension for the balance of the academic year or outright ex; ithion
and it cannot be regarded as counseling or merely transfer to another school of at least
(lull quality and of equal convenience to the student, where we're talking about
sanctions that may significantly impair the future earning capacity of the young man
and his future educational carer as well, then an intermediate degree of procedural
due process tends to lock in. All of this is rationalised, that is,made rational, made
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reasonable, merely by oisserving that the greater the potential consequences from
making a mistake the greater society has resolved to use care in the determination of
.hat particular decision. When you get down to the specifics then of the more severe
sanctions as applied to school children at least at the high school level it is my
impression that they include, or thy probably, according to the trend to judicial
decision, include these things. First, a clearly stated chargea clear statement of what
the rule is that the student is alleged to have violated and what act he is thought to
have committed which make it appropriate to impose some serious sanction upon him.
The requirement of this degree of specifying a charge is there in order to advise the
student of what he has to prepare against, what he is thought to have done so as to
make useful the next level of the requirement itself, namely the hearing, and that one
knows reasonably well in advance what he is thought to have done. Otherwise, the
hearing itself may become a matter of surprise, an empty gesture when one learns for
the first time, too late to try to get other people together to act cs witnesses or
uncloud their memo-ies and make the hearing useful. Thus the elementary re '-e-
ment of the charge_. It need not even be in writing but simply an intelligible communi
cation what the student is thought to have done wrong, proposed to him sufficient')
in advance that he will then have a decent opportunity to utilize whatever resources he
has in preparing for a hearing which may follow. There must be a hearing. It need not
be a formal or ceremonial thing but it must at least provide him with an opportunity
to appear, generally to be present while those who are presenting things against him
state their position, to enable him to know how to answer if indeed he has anything to
say, but essentially to make certain that the person or, group who is making the
decision governing his future, will mare it on the basis of information what he has
been able to share and which he knows, therefore, the administrator may net upon. So
one may speak informally of a right to know the nature of the evidence presented to
the man or group who is thinking of making the critical decision against him. There is
probably a requirement of impartiality in the group or individual who makts the
decision and I speak specifically of the right of "impartiality" and not a right to
judgment by other students. For my beat forecast, that is all the court is likely to
requirea degree of detachment, of uninvolvement in the body or individual who is
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making the ,:ritie..] judgment.
An issue that has been in controversy with many educators and some courts, and
which remains a subject of disagreement with the courts on this issue of due process is
the extent, if any, to which c student is entitled to be accompanied by an advisor of
his own choosing up to and including an attorney at law. There is currently
disagreement in this area. The majority of cases this far have rejected the notion that
the student has a right to have an attorney present. Yet two or three cases quite
recently have gone the other way. And taking into account the relative novelty with
which this whole field is being explored, I think it a reasonable forecast that attorneys
at law will probably be allowed access at least to those hearings in which the
consequences to the individual students may be very grave, although at the same time,
I believe that the attorney may have to play a reduced function; that is to say, he may
act as an advisor, he may advise his client, but he will not necessarily be given the
prerogative as agairut a group of laymen who preside on the board to engage in the
customary adversary role that an attorney at law may pursue in a comt which is
equipped to cope with that degree of professional ski!. But the presence of
professional counsel at least for the sake of ad - rising the boy and h6 parents 6 at least
a possible development in any view, Finally, although this is not a constitutional
requirement, a hearing which places the student's academic career in jeopardy should,
I believe, have a verbatim transcript; and that does not mean a court stenographer, it
does not mean again any elaborate and costly mechanism exactly taken from court: of
law, it merely means for instance, a tape recording of the entire proceedings, for
future use it and when this controversy finds its way into a court. And I intend this
this last suggestion in a kindly spirit, because. to the extent that school boards can
persuade a cc urt of law that the nature of the hearing itself was fundamentally fair,
then the court is very unlikely to intervene and made an independent review of the
whole transaction over again. Indeed the customary measure of judicial review, for
instance, over a subordinate administrative group is merely to look at the record, if it
6 drawn into controversy, to determine whether ..,. not there is substantial evidence
in that record, considered as a whole, to support the conclusion reached by the
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administrative group. Thus it seems to me that there is economic feasibility in the
use of a tape recording which may never need to be u-ed, and after an inLrval of
time, of course, may be reused for some other occasion; protective of the student, and
for the school, extre_nely useful itself. This th, n in rough fashion can be seen as a not
inaccurate overview of the substantive and Procedural limitation in regulating
political controversy on campus.
That leaves for observation two minor themes. One has to do with the emerging
tendency in some areas of the country for mass protest, mass misconduct, which
requires some flexibility in coping .rith the situation. For to be sure, if one is dealing,
for instance, with a brawling group of 2,200 students, who seize a building, and
nothing may be done to anyone until the full procedural apparatus has been observed
m respect to each student, we may be forever in trying to restore order to the campus.
I do mean to suggest therefore, that the federal courts are not insensitive to the
emergency need PI reestablish order and, to the extent that inteeM measures can be
seen as justified by the proportion of the emergency, they will be sustained. Let me be
specific in two regards at least. One has to do with the use of an interim suspension on
the spot, prior to a hearing on any underlying charge. If we assume, for instance, that
a number of students are Mocking the hallway or otherwise directly interfering with
the conduct of classes, and that there is no feasibility to hold individual hearings of the
style I have tried to outline and still restore order in a sufficiently prompt fashion to
get on with .he ordinary school routine, given a reasonable effort to identify the
individual students, an interim suspension against those identified students may be
imposed and take effect pending the subsequent outcome of the sort of hearing I have
tried to describe. There is one qualification to the use of interim suspension that at
least one federal court has suggested, however, and that is this. That to the extent that
the short circuiting of fair hearing to determine individualized guit is justified in the
first instance because of the emergency, because of the felt necessity to take this
measure in that the continuing presence of the student until the hearing is held is
itself felt to be a danger to the school, unless the herring is held within a reasonable
amount of time, the student must be given an opportunity to pride personal
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reassurance pending the outcome of a more regular hearing that will not continue to be
a source of disruption to the school. What it reduces down to mechanically, I suppose,
is to clear a given area and persuade the students on the spot, but if there is to be no
hearing to determine their individual responsibility within a few days (it sometimes
may be simply impossible as a physical matter) then those students must be at least
given the chance *o come in and indicate that if they are restored to the classroom,
pending the outcome c f the hearing on their major offense, they would provide
assurance that they would attend doss and not engage in disruption pending the out-
come of the hearing. Thus the trade off between the protection of the student against
peremptory process by the school and the maintenance of order. (As an additional
measure that the school is entitled to use under these circumstances, recourse may be
had to a local court to secure an injunction against the continuation of certain
boisterous or immediately disruptive conioct by the students.)
Finally this observation, by way of scaling down and trying to put in more
modest perspective the necessary relevance of what little I have had to say. As I tried
to indicate in the beginning, most of the legal development in the federal courts based
on constitutional law has arisen not in the setting of tl.e public schools, but in the
setting of the public universities. And it is true, to be sure, that the Fourteenth
Amendment app:ies equally to public schools as it does to public universities. Yet it
does not necessarily follow that th, particular protection which a person receives is
the same irrespective of his age or the nature of the school. There ore differences
between high school needs and university needs which will be still acknowledged by
the courts. Thus, for instance, a public school may have some rules respecting social
coni.uct which a court might not believe were constitutionally tolerable with regard
to an adult age person 21, even 18 in a university. In the relative younger age of the
high school an ; certainly the primary school students, the notion that the school acts
in loco parentis cannot be wholly disparaged.
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RESPONSE TO WILLIAM VAN A LSTYNE
by
William Hartman, Attorney
Cleveland, Ohio
In this situation I like to return to my freshman year at law school and get out
some of my worn books. I have turned this time to Blackstone which I find very com
forting on this subject. It says a parent may delegate part of his parental authority
during his life to the tutor or echo A master of his child who stands in loco patentia and
has such a portion of the powers of the parent committed to his charge, that of
restrauit and correction, u may be necessary to assure the purposes for which he is
employed. Now at the time I was in law school that was a very comforting thought
because that solved the whole situation. Here, however, on reflection, if the schools
today were only delegated the authority that the parents now have I think we would
have utter chaos.
Now I am going to spend a litde time, very little time, talking to you from the
standpoint of the lawyer that gets called by the school board or gets celled by
Mr. Sheldon. What do we do? The first thing, and before I even consider constitutional
rights, and I think this is going to become more and more important, the fist
question I try to ask myself is what power or authority does the superintendent or the
hoard have tc impose and enforce a rule. Forgetting the constitutional question
entirely, where do they get this authority on this particular rule? I also try to keep in
mind that school is not a public forum, it is not in the category of streets and parks,
speech is not free in all places at all times in every manner and I by not to become
confused with some of the cases that have to do with the efforts to Mop speech
making in public places, public parks and public streets. I also have come to recognise
that you cannot rely upon the failure to show an abuse of discretion. What a com
forting defense that used to be when you could simply rest and argue that no one has
shown an *bust of discretion. That oil' no longer do.
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When we get to the making of rules I am concerned greatly about whether the
rule is going to be'enforeed in a situation which really it wasn't intended to cover, but
by its language it does cover. In other words, whether or not the rule is going to be
uniformly enforced and whether to enforce it even in a situation which really doesn't
bother you, the school may end up in having the rule become invalid because of lack
of uniform enforcement.
I try to urge whoever calls me to avoid censor-hip. Just using the word is a
horrible thing, but so often you hear the question, "Isn't it all right if I read the
particular thing that thcy want to distribute snd if it sounds all right to me maybe I'll
even put it en the bull-tin board." That of course is a rule that just won't work.
I think all of us in this field have to recognize that many of these situations are
deliberately created. :t is not in all situations a case of seeing tr it that the students'
consdtutional rights are protect^d, but rather it is a stud,tet who with prior advice
from an attorney, and with instructions to return to the attorney as soln as a decision
is made 1-.1 create a confrontation. Ile knows what he is demanding to do, he will
probably educate the principal or whoever faces him in his constitutional rights and go
straight to the law office of his counselor n soon as he gets the answer and in that
situation it gets pretty close to a lesing cos., for the school board because it is well
planned.
i also feel that one place that we are in trouble here is that the penalty for this
sort of thing is so severe. There doesn't seem to be much that y.m can do between
expulsion or suspension except slapping of a wrist. You are either going to stop the
activity or you are going to permit it. Now I would like to read to you a portion of the
District Court's opinion in the Cuzick case because I think it well sets forth the court's
feeling in this particular situation, covers the situation well, and is self explanatory.
This case is now on appeal and will be argued in the Sixth Circuit on the twelfth of
December. This was thesituation and the facts will become obvious as I read it.
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The court has concluded that Shaw High has had a long
standing and consistently applied rule prohibiting the wearing
of buttons and other insignia on school grounds during school
hours unless they are related to school sponsored activities.
The court finds that this rule has been of a significant factor in
preserving peace and good order in the school and preventing
provocations, distraction and disruptive conduct. The court
finds trr t if this policy of excluding bottons and other insignia
is not retained some students will attempt to wear provocative
or inciting buttons and other emblems. If these provocative
buttons arid insignias are permitted to be worn they will fur-
ther amplify an already serious discipline problem. The court
finds that if students are permitted to wear some buttons but
not others, similar disruptions of the process will occur. Many
students will not understand the justification for any rule that
prohibits the wearing of certain buttons while permitting
others. Any rule which attempts to permit wearing of some
buttons but not others will be impossible to administer. It
would make the determination of permissible vs. impermissible
difficult, if not impossible. It would be disruptive, many of
the buttons which are most sought to be worn are of the pro-
vocative and inciting type. If a line is drawn between provo
cative and non-provocative buttons, the student most desiring
to wear buttons of a provocative type will feel discriminated
against.
It goes on for several pages, but I have read enough to make my point and it is
this: that in this situation if you are going to have a confrontation in a sense that you
gay this is our rule, we are going to enforce it, you are certainly going to face action in
court and you cannot olerprepare your case. You can well imagine the :mount of
evidence, I think this was in trial for four or file days, that went to support just those
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few statements or conclusions of fact.
In the final analysis, if you have a rule, and if you are going to enforce it, you
have taken on a terrific burden and you are going to have to get to your counsel beforr_
you start drawing and enforcing the rules.
VAN ALSTYNE'S REACTION TO HARTMAN
Far be it from roe to suggest that the school board ought not to give substantial
business to the legal profession. There really is just the last item that Mr. Hartman
brought up that I might provide some clarification on.
I have read that particular case and it is a marvelously well prepared case. I do
not want to make clear that one ought not be systematically misled by the results in a
particular case. The Supreme Court had before it, as Mr. Hartman of course knows,
just about a year ago, a case which superficially is fairly similar involving the %tax-mg
of black strips of cloth in the form of an arm band in the public high school in an Iowa
school. The children %ore the arm band as a mute or symbolic protest over American
involvement in Vietnam. They were suspended until such time as they would elect to
return to the school not wearing the emblem of political communication. The District
Court refused them relief, the Court of Appeals divided evenly, the Supreme Court
reversed. I think it was nearly unanimous though not quite unanimous.
I have put in the illustration,really I suppose merely to ark'. to your distress that
you cannot therefore even take from this particular session even a seemingly trivial
piece of reliable information that a school board can at least take a firm stand on the
one issue of peaceful, though symbolic communication on the school premises. It
would be a mistake to suppose, however, and to overread this particular case or any.
thing else we might discuss.
It would be a fatal error to suppose that school pounds are so distinguished
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from parks and streets that they can be completely screened off as places for political
communication. The case I just referred to is Tinker, which is itself the very best
evidence of that.
A related case from the Fifth Circuit, Myers u. Burnside, had to do with Negro
children who wore lapel buttons to school and did not themselves otherwise throttle
students or intimidate them or push their views upon unwilling lookers, unwilling audi-
tors. They too were suspended. Their suspension was also reversed in the Federal
Courts. In short, there is judicial recognition that although distinctions may be made
within a campus according to reason, time, place and manner, the State cannot simply
cordon off the geography of school property as such and place it beyond the sphere of
any kind of idological communication at all. It is therefore a function of time, place
and manner.
The facts in this particular case, if one was listening, indicated that it was a long
standing rule, it was a racially integrated school with a long history of considerable vio-
lencelt had a long history in trying to administer rules dealing with particular buttons,
the judge felt on balance that the rule was applied under the circumstances was itself
reasonable. I had misgivings and want to conclude with one observation.
Something makes me uneasy about the judge's conclusion. This is not entirely
fair for there al other elements contributing to the results in the case, but one of the
contributing elements if you were listening was this. Since the reaction of those who
may see the button may be hostile reaction, since it is the reaction of the man who is
offended by what is carried on the button and he may threaten violence, therefore, is
it just for the school to forbid the wearing of the button? Now the button in question
in this particular case was not in my judgment a provocative button, it was simply a
button that said, "Vietnam Moratorium Committee," a certain date, that was all. The
point f want to make is this. That in terms of the tests we have been discussing, are but-
tons a clear and present danger of an avoidable substance of evil. Of course we are of
one mind that physical violence is the sort of evil which school boards, as well as state
legislaturta may seek to avoid by punishing physical conduct which constitutes
violence, but if you were careful about this you will note that the immediate threat of
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violence is not by the person who wears the button, which is otherwise in unoffending
language, it is not obscene language, it does not use certain trigger words which are
emotively, immediately provocative to the other person. It is rather the substance of
the message which is found to be offensive and which generates violence in the person
who sees the message. It generates a feeling of hostility that may then give rise to a
minor disturbance as such.
There is a perfectly well understood doctrine in constitutional law, however,
(hat freedom of speech may not be denied to a person who is otherwise attempting to
communicate in a civilized and peaceful manner, merely because of apprehension of
the violence threatened by those who are opposed to what he proposes to say. We have
had at least one add Supreme Court test under genuine circumstances of reactive
violence, not violence on the part of the person who wears the button, but the threat
of violence by those who were hostile to what he seeks to do. The case was this, and
I suggest that there is in fact a very powerful parallel to this kind of situation that
ought to make one fairly modest in the formulation of rules: Little Rock, Arkansas, in
1957, where Central High School finally was desegregated by power of a Federal Court
order. Yielding to the Court order, the School Board took conscientious and appro-
priate steps to secure the admission of Negro students otherwise within the attendance
zone as described by the Court. The Board acted in complete good faith. Nonetheless,
the parents of the white children were so outraged by the prospect that Negroes
would attend school with their children that they began to ring the high school and to
threaten the lives and the welfare and the property of the school board members and
there was literally a ring about the school. To a certain extent the inflamation was
aggravated by demagogic statements of the governor of Arkansas.
Faced then with this immediate potential, and a very serious potential of broad
scale violence, the school board went back into the Federal Court and asked for a
postponement for the effective date of its desegregation order. Their argument not
being that they were seeking any longer to segregate the school but that as a necessary
precaution to avoid violence on the part of the reactive party they should have the
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postponement. That case went to the United States Supreme Court and the United
States Supreme Court in the very well known case, Cooper vs. Aaron of 1958, gave the
School Board no additional time whatsoever. Their observation was simply this, that
the exercised constitutional rights cannot be made to yield to the threats of force and
violence to those who oppose their exercise and at the time that was not theatrical
rhetoric for it required a presidential order, the mobilization of the National Guard
and the use of military force to secure the admission of those students against the
threats of violence of those who opposed this exercise.
Now I suggest that there is more than accrued analogy to the right of free
speech. With violence threatened by those opposed to the idea, for instance, cannot
serve as a justification to punish the man who merely seeks to speak. The appropriate
remedy in this case is to apply all essential sanctions against those whose own conduct
is the immediate source of the threat of violence and not for the man who peacefully
seeks to communicate an idea of his own.
RESPONSE TO VAN ALSTYNE
by
Farley Seldon
Principal, John Hay High School, Cleveland
A young teacher rat in, just before 1 was ready to leave. 'o indicate that some-
one had pulled a knife on her in the hall. This is +Away J problem. Can we search
them? If so, what part of this can you use as evidence? It he lid- marijuana in the
building, and you know it, can you search him? If he his a i ;slit n his person or in
his locker, and you are aware of it, can you go to his locker will out his permission
and take it from his locker?even though you know that h. 1 fight be one that might
readily use it.
I am learning every day about student protest. I could ha., I a few young
people here who could have really told us something :lbo. t i,con.t I don't know it I
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tell them everyday that I am simply trying to learn. I think many of them do, and I
think that many of them are aware of the constitutional guarantees that they have,
and they readily point this o.it to us.
I had a youngster just the other day, and I thought of this as the speaker was
mentioning the need for Boards of Education to have in writing those things which will
help us to make sure that we can legally do things in a building without confrontation.
This young fellow came in a few days ago, and he is one of the students who last year
was one of the leaders in closing down the school for over a week. As you k now today
students feel that whatever affects one affects them all. There was a young lady that
we had to transfer to another school because of a physical condition. He came into my
office and said, "Mr. Seldon, (I knew exactly what he would ask first, because he is a
pretty smart youngster), I noticed that you told her that she had to be transferred to
another school." I said, "Yes, that is true." He said, "I want you to show me in writing
because she is married she can't attend the school any longer." It so happened that he
thought he had me in that case, but he didn't. I simply got the principals' manual out
and I said, "Sure I will show it to you." I opened the book and showed it to him. At
least he saw it in writing. It would have been different if I had told him this is a rule of
the Board of Education, but 1 can't produce it for you in writing. So at least he knew
that we were going wit }, something in writing, and we had not made a rule to fit that
particular case. I think this is essential, we must have in our schools, in writing, things
that will cover many of these situations.
As I listen, I wonder how we can rover some of the situations that we are faced
with in terms of protest. They come in so many different forms. You really have no
way of knowing in what form it may come tomorrow. It is really rather difficult fur
you to spell out some of these things, but I think that it is definitely true (hat as many
of these rules as we can Ten out in terms of student conduct and expected behavior,
we should have in writing.
The students of today are very much aware of their constitutional rights and
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they make us aware of that. Now I feel, however, one thing that is coming out of
student protest (in secondary schools especially) is that we are now finding out we
have to do the things that are legal. We can't just make a rule because we have a
problem, we have to make sure that we have some real legal backing for the actions
that we take. I think this is good, truthfully. I think that for a long period of time
many parents did not involve themselves and therefore we were able to get by with
things that were not necessarily legal. Today this is not true. I wondered just how you
could have a hearing with disruptions, where there is very little order, and where they
are taking over the halls and classrooms. How would you set up the mechanics to get
them back. I don't know how you could generalize in such a way as to provide things
in writing that would cover many situations that would face one in student protest
action. I think that it is good that we should make sure the pupils understand exactly
what the charges are that are made against them.
I don't think that we would be too effective if we have to bring those people
who accuse the students to face them. I think that all of us are aware of the fact that
many of them are afraid to face the person that they have seen break into a locker,
or come in with a weapon. So consequently you have to wait and say okay, you can
face it, you will never get any information. You will find that there will be some who
may be in the building with weapons. You have to take some actions.
It seems to be today, that even though you know he has a weapon on him, you
have got to take certain precautions so that later you will be legally right. For instance,
we found a youngster with marijuana in his hat. We took it, and found that he had
also stolen a coat, which ha had in a bag. The first thing we had to think about once
we got him down to the office, was, first of all, how can we do this so that we can be
on solid ground if we have to go to court with him. One of the assistants said that we
can't really search him unless he lets us. Basically it L. coming to that even though you
know that he has a weapon or narcotics on his person. In order for it to stand up in
court, you have to make sure that you do it in a certain way. In some of these cases, I
just don't know how we can do it, and really effectively operate a building.
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If a person has a weapon, and you know that it is in his locker, or it is on his
person, how can you make him aware of all th;,: let him know who told you? If you
do this, I think that you will find that you get ouch less information, which I think
you have to have today if you are going to run a building effectively.
Today you will find students are afraid to go to court. You tell them they have
to sign a statement and they will tell you no, they will not sign it, because, in fact,
they are afraid. Now they will tell you that it happened and explain it to you, but you
can't get them to sign a statement or get them to go to court and testify. It makes it
rather difficult, which means that many of these cases are thrown out of court. There.
fore, it makes the control of buildings much more difficult. I feel this is one of the
legal handicaps placed upon the administrators.
I think definitely that we should all be told of our constitutional rights. Many of
these would be very difficult to put into practice. For instance, I doubt very seri Jus ly,
that you can find many students (even after they have been approached by oae with a
weapon), to prosecute. They may tell you, but in many instances, will not sign a state.
ment indicating that it happened. Which means that you don't have any v..ay of moving
the youngster, basically, from the school. I think that most of the students today are
very much aware of their constitutional rights and they use this in many cases in
getting around doing the things that we would like them to do. But again I think that
it is a learning situation for all of us.
We will just have to learn to operate within the law and make sure 'hat they have
all of these legal textbook.. However, I think the right to pass out certain types of
pamphlets, written material in the hallways can create quite a problem for school
people. Freedom of speech must be protected, but again I am sure that most high
schools in the large urban areas, if permitted to say what they really want to, in an
assembly that they might call, or in one that might just have happened in the hallway,
would have so many disiuptiona, that it would be almost impossible to operate. My
only question is, "How can we put some of these things into practice and operate
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UPSURGE AND UPHEAVAL IN SCHOOL LAW
VAN ALSTYNE'S REACTION TO SE LDON
I think some of the difficulty rises again from the unnecessary and unfortunate
misunderstanding of legal norms. Take for instance, the problem of search and seizure.
I think there is a misunderstanding of the Fourth Amendment's protection of privacy.
I think there is a difficulty, you see, that some seem to be suggesting that the mini
inum constitutional requirement is preceived by those on the firing line to be, frankly,
infeasible and therefore, not necessarily an intolerance or a resistance to the spirit of
fair play. It simply is the agony of trying to find ways to apply the norms and still
live within one's own school. I mean to suggest, however, this is an unnecessary con.
flict. But I think feasibility and fair play are reconcilable, under these circumstances.
We have simply not given it enough specific attention.
Let me try to suggest ways in which I think there is a greater feasible way in
reconciling these norms, and I feel no change that I didn't anticipate all this because as
you have recognized some of these problems have to do with political demonstrations
as such or free speech as such. But they have to do more with the run of the mill tough
kid problems on that particular urban school campus.
The search and seizure proposition, for instance, like procedural due process, is
not a single thing. It does not mean that in every case where one believes that a person
possesses a weapon or heroin or something else. Irrespective of all the circumstances he
must first caxtiously go down to the police station, persuade a magistrate to issue a
warrant, then cfficially execute it by an officer. The Fourth Amendment did not
operate that way, with regard to police themselves. There are, for instance, circum
stances where a search may be made on the spot in the absence of a warrant. Such a
circumstance would be where the person has already been placed under arrest. Or the
policeman on the spot discerns he has either violated a misdemeanor ordinance or a
felony has been committed and there is reason to believe this man has committed it
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SPEAKER'S RESPONSE
Thus the individual has been placed under arrest and a ^lose immediate search of his
physical person restricted in nature may then be made. When a man is seen dashing
trim the bank, for instance, and then runs into a private apartment bui'ding with a
policeman in hot pursuit, the policeman may pursue him into the bull Jing without
interrupting the chase to go to his friendly neighborhood magistrate to ask for a search
warrant. There are exceptions for hot pursuit.
Not more than a year ago the retiring and liberal Chief justice `Marren in a
case involving the state of Ohio, a case called Terry vs. Ohio . The stop and frisk
situation, which brought a great dissent and which is very controversial, but which
furnishes an additional illustration, for instance, the requirements of the Fourth
Amendment are not as rig;d as lay people customarily think of them. Terry vs. Ohio
had to do with a factual situation who re policemen eb--erved two men walking up and
down at a rather unusual hour before a business establishment, holding close conversa
Lion, looking in through the window, coming back and forth a variety of times. He had
been a patrolman for something like 15 years. He stopped them, asked questions, find.
ing the responses less than edifying, indeed they contributed to his total suspicion as to
the occasion of their presence at the time, he then padded them down. It is a step by
step business. It isn't though he immediately placed them under arrest or threw them
to the ground o- - tried to give them a stomach pump or something else. It is a very care-
ful step by step reconciliation for the needs of law enforcement plus the physical in-
tegrity of the men involved. The court divided five to four. But the technique was up.
held. By upheld, I mean the evidence that the patrolmen secured from the men by pad-
ding down and taking from their coats certain things, that evidence was subsequently
held to be admissable in a regular criminal trial.
To the extent that one knows, for instance, that the student had a weapon on
his person, and if indeed there is a proper school rule, it is arguable, there is no ease
on this, it is arguable that if there is great probable cause, if indeed the information
subsequently refuses by a neutral orioral fact was sufficient under the circumstances to
warrant that degree of personal intrusion at least to pad the boy down. My analogy;
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that kind of procedure might be a pill.
_ To take an analogy from still a different area, for instance, about a year and a
half ago, the court for the first time applied the Fourth Amendment to the area of wel-
fare searches. The man in the house, the midnight search, and held that that degree of
intrusion of privacy is constitutionally tolerable but simultaneously in a competitive
fix observed that to the extent that there are legitimate state interests in the enforce.
ments of safety codes, for instance, or building codes. Here is reason to suppose that
there is indeed defective wiring in the house the state may authorize a kind of inter-
mediate search provision. An administrator who acts according to information where
there is reason to believe that the house contains a dangerous condition, the adminis-
trator may issue an administrative search warrant for the particular premises. I can't
sketch it as very broadly, it is itself a very nebu'ous drawing in a controversial area. I
do mean to suggest, however, that it is clear the Fourth Amendment does apply to
students. Indeed, there are several cases where the expulsion or the criminal conviction
of a student based entirely on evidence which was taken from his locker by a police
man, who had merely a guess or a hunch or an anonymous tip or a notoriously nonre-
liable, unknown source, has been revised. There is a trade off between the need for
personal integrity and privacy and the need for public safety. 1 do mean to suggest,
however, that a more professional tracing of the field, will show a degree of feasibility
which can give us comfort and suggest that we are not making a choice that either the
students be cast in limbo and treated constitutionally as though they were somehow
nonhumans, different from the leacher, entitled to constitutional security in his future
Cater, different from the man on the street, different from the home owner, different
from the landlord. There is no intellectual case, I suggested, to put students in limbo
and to say that the Fourth Amendment does not apply and on the other hand, and an
equally unacceptable proposition, but what the Fourth Amendment means, applied to
students, is the schools are helpless in protecting themselves or setting minimum stand-
ards of integrity or safety. i don't want to enlarge upon it, because we have other
questions. I do mean to suggest that there are edminitrathely feasible means of recon-
ciling a decent leave or physical integrity of the individual student for the safety of the
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schools.
Now does the person know what is the basis of this knowledge or his guess or his
intuition that the student in fact has the heroin or the gun. If we do not require some
modicum of real probability can it not be seen that the possession of ambulatory
search power can be in itself extremely abusive, extremely hectoring, and the abuse
of which frankly will lead to more campus fracases than a scaled down or proportion.
ate use under the circumstances.
The other item I wanted to direct my attention to, because I can't give nearly a
satisfactory response, is the difficulty in making a case against the student where the
case depends upon the willingness of other people to step forward and speak to what
they know. I have no doubt that it is quite right to say that students, even more
perhaps, and at least as much, as the rest of us, are timid and shy and sometimes
downright fearful to come forward and confront the person whom they are accusing.
But is it not equally true that that is true in the rest of civil society. It is a nuisance
for us to appear in court. It is sometimes a matter which places us in some appre-
hension. There may be private retaliation if our name is known to the man whom we
are accusing of buglary, or rape or murder or something else. That is true. Yet, really
the benefit here is resolved the other way. That is to say, as against the two hardships,
the degree in which the order may be slightly impaired by requiring the right of con-
frontation and the hardship on the other side, the man may be convicted on the basis
of evidence of which he has no knowledge and therefore is in no position to answer at
all the general proposition has been in favor of resolving the benefit of the doubt in
favor of the accused.
I know of no court of criminal justice, even if the accused man is believed to be a
member of the mafia, with machine gun enforcers, &Oast witnesses. I know of no
coat in the United States which would constitutionally tolerate the conviction of the
suspected man with no opportunity even to know the name and the substance of the
testimony that was offered against him. That would be regarded as a kangaroo court.
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As the Supreme Court observed, incidentally, in a case involving a juvenile court and
its very process two years ago, the condition of being a boy does not justify a kan-
garoo court.
I think, therefore, one must face up to the facts that to a certain extent, and
here I back away from my confidence of my earlier observation, that to a certain
e lent one must recognia.: that the function of procedural due process is not to make
more efficient the enforcement of criminal statutes. Quite the contrary, it is for the
protection of the accused rather than for the efficiency of the social order.
It is strange, however, in this field that even the most conservative justices on
substantive issues, the extent to which speech is protected, for instance, the extent to
which the state may legislate against conduct. Some of the most conservative justices
on substantive constitutional law have simultanec .4 taken an extremely generous
view on procedure on behalf of the accused person. A well known conservative of the
Supreme Court made an exception in the field of criminal procedure and more than
once noted in an opinion of his that the history of liberty has largely been a history of
the observance of procedural safeguard.
The conviction of a student and conviction in the sense of ruining his future
educational career seriously crippling his income prospects for the remainder of his
life on the bash of purely anonymous testimony that he does not know about and had
nn opportunity to rebut at all, impresses me whatever the infeasibility of requiring
confrontation as essentially offensive to one's sensibility and I do not see any escape
from some requirement of this sort. Now it will remain true, of course, in some cases
the school does not have the same power of subpoena as a court of law, and thus can
not compel the attendance of witness. But I suggest that there are twn feasible alterna-
tives liere. One of course, is to have state legislature or school boards, assuming that
they are otherwise authorized, to adopt such a rule to possess the equivalent of a sub-
pe ma. That is to compel the attendance of those who ay have evidence against an in-
dividual. The substitute that one court has suggested is this. That where the school
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cannot assure the presence of an adverse witness, and where the testimony is nonethe-
less crucial or at least immediately relevant to the determination of the violation to the
rule, the school under that circumstance, while it has no constitutional duty to bring
the man into the hearing, must make available to the accused the name of the witness
and the substance of his remarks. Without at least that much, he frankly is in an inade-
quate position to know what it is that he must answer, what it is that he must clarify,
what it is he must overcome ir. order to reestablish his innocence. I should think at
least that that would end some degree of feasibility.
RESPONSE TO WILLIAM VAN ALSTYNEby
Charles Gonzales
President
Student National Education Association
I feel the need to put some perspective to the issues that are raised this after-
noon, by talking around the circumstances that lead to protest and speaking to the
whys of protest from a student's point of view. It is a first for me in that I will have to
read some notes because of the time limitation.
Society to me is in a condition of national crisis. The American dream is
becoming a nightmare of meaningless values and contagious chaos. The spirit of the
national community is dissolving, and we find ourselves becoming increasingly
polarized. This polarization affects both people and valuers. The confusion of values
distorts our image both at home and abroad creating mistrust, disrespect and panic.
At present we seem ill equipped to do anything about this situation. We voice old
platitudes and outworn slogans rather than attempting an honest appraisal. For the
sake of security and power, we ha e plundered our spirited people. Our citizens have
become numbers and slots, competition and greed, and the salesmen and the
promoters of gain and profit have become the measures of significance, and America
finds itself to be a dehumanized punchboard instead of a human king community.
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Nothing seems to work. We obstinately cling to ineffectual approaches to change,
whether they approach the liberal or radical, reactionary or conservative. Our clearest
approach to today's problems is the approach of non-approach: apathy.
The symptoms of our condition increase all around us. Violence has become the
order of the day. Our cities are powder kegs, our people frightened and polarities
frightened because of it. The people of the ghettos see where this nation is headed and
understand too well that their own needs are not honestly considered. Their reaction
is one of panic leading to riot, militant mobilization or deeper apathy.
Our colleges and universities arc stumbling under the threat or reality of violent
student action. Nlany college students clearly see the self-destructive path of our
nation. We are both bewildered and enraged, feeling that the institutions of learning
have fallen prey to the self destructive path and are teaching the feats of this death
march instead of pursuits of human excellence. Students on all levels are taught one
thing and see another in practice. We are taught the Bill of Rights, we are taught
honesty in church, yet we see a Justice of the Supreme Court forced to resign for a
violation of judiciary trust. We are taught brotherhood and love at home, y et our
nation fights to maintain itself as the world's largest owner and producer of nuclear
weapons.
The youth of today are faced with imposed social isolation. We have to
interject ourselves into the community in which we have had no real opportunity to
participate. But we are no longer content to be ignored and we are desperately
searching for ways and means to be heard. We are however. neither taken seriously or
listened to. It is regrettable that any statements of student rights need ever be written.
The rights enjoyed by an individual attending an institution of higher education
should be ideally the same as those rights we have been all granted by our Bill of
Rights. Unfortunately, this is rarely the case. We are taught to conform to a prescribed
ideal. The American student learns at an early age that succcss depends upon "learning
the topes". Our curriculum is outlined, our initiative chanheled, desires reptesscd,
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experiences delayed, responsibilities withheld, maturation interrupted. Many young
people seek comfort among themselves, for they feel there is no person except one of
their own to whom they can turn for help. I see in my past generation the evil which
has brought society to where it is today. Many students react by cutting themselves off
from society, creating a subculture of their own. Some respond by rebellion, or escape,
and others albeit a majority, dedicate ourselves to bring about subsequent change in
the society of which we are a part. Given this analysis, the youth represents an
untapped reservoir of energy which will respond if given understanding, direction and
concrete opportunities to prove itself. What is needed is a proses to combat this
alienation and restore confidence in our original purposesdemocracy and the respect
for universal human dignity.
The democracy proposed is procedural. It is procedural in that the problem in
education and in society is the process problem and the solution of that problem
requires the process approach. Process is how it is done, while purpose is why it is
done. Process and purpose are part of a single continuum that proceed together. For
example, the very process of democratic citizen participation in eliminating apathy is
more fundamental than the specific purpose of ridding the alleys of dirt. At this point,
process is really purpose. As educators and lawyers, you must certainly realize that
human dignity and respect is the bask philm,ophic precept of the democratic way of
life.
When the dignity of people is respected, young people cannot be denied the
elementary right to participate as fully as possible in the working out of our problems.
Self-respect depends on active participation in resolving crises faced. To give young
people help without their having played a significant part in the action, makes the help
itself relatively valueless. in the deepest sense, it is not giving but taking, taking from
their dignity. Denial of the opportunity for participation 6 a denial of human dignity
and democracy. It will not work.
1 he alternatives are as clear as they are frightening. Either we react with fear
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and respond in all ways, or we accept the challenge to question the assumptions that
underly our current way of life. You must listen with open minds to your young
friends. History rarely presents this opportunity. We must meet it head on, for the
determination, resources, and creative ability of young people can bring new vigor to
the American scene.
Much as the fathers of our nation brought freedom to their brothers, the youth
to today possess a determinrtion that is narrow in the last hours of labor, waiting to
give birth to a challenging new trend in the contemporary history. This determination
goes beyond seeking another faddish program or fabricated project. Instead it consists
of a basic belief in one's country and a real understanding of how outdated
assumptions have produced so much useless affluence and dire misery. The price for a
renewal of spirit and a sense of community will be great for ill. It requires of youth,
of anyone, a total price which is beyond the mystique of revolution based on naive
tactics and no strategy, a rejection of middle class guilt venturing, of involvement in
innovative programs of liberal reform that serve nothing but the interest of corruption.
The price, the renewal of spirit. A community can only be born of a common vision.
That vision is being widely revealed in the hearts and minds of young Americans, and
history now gives us the mandate to come together. We understand that it is now a
time to end the senseless violence and self destruction and instead to celebrate a vision.
In that celebration the birth of a vital America will b discovered. The present reveals
the vision and the community is waiting.
VAN ALSTYNE'S REACTION TO GONZALES
I hope you share my difficulty in seeking to respond to that. It is very awkward
to try. For without wishing to appear ungallant, there is a certain seriousness of
rhetoric in Mr. Gonzales' statement. It seems to me that it is the mirror image of the
fierce rhetoric he seems to protest. That is to say, the statement opened as I recall to a
certain indictment of an American hypocrisy for having stated national aspirations
which we have failed to fulfill. Yet in the more profound statement toward the end, it
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SPEAKER'S REACTION
seem to me that we were receiving echos of the same sort of unspecified aspirations
based upon a kind of sublime faith.
There is something intrinsic to you that can discover the proper way and bring
about a national salvation. I suppose it reflects an unchivalrous professional bias in
trying to respond to a remark such as that. But one finds himself uneasy because of
the relative generality of the aspiration. I think none of us car. hope to take exception
to the spirit, or the integrity or the intensity of Mr. Gonzales' feelings. But I for one
am at a great disadvantage in trying to frame a response to an unspecific kind of pro.
gram or an unspecific dramatic conviction that youth holds some kind of genetic
insight into the resolution of very important national issues. I think there is, however,
a message, I do want to try to relate it to this discussion or rather perhaps to show the
limitation on the relation.
Mr. Gonzales' remarks in a different sense reminds me very much of the com-
mencement address that Dick Gregory gave to the undergraduates at Harvard College
about two years ago. Ile closed with an antidote and it was the specificity of the anti
dote which seemed to me that made his point so very well about the raw edge of
American lives. He tried to describe the particular predicament he was then pro.
traying: the difficulty of Negro American lives according to a more homespun story
that we would all recognize. It was this: Suppose that one is waiting in the subway
for a train, with some little time on his hands. Feeling a bit hungry. he goes over to
the confection machine and puts in a quarter. He pulls the lever as he is instructed to
do. Nothing comes out of the machine. So he tries the lever again. Still nothing conies
out of the machine, but he has invested his twenty-five cents, as he was told to do.
Then he tried the other levers. Nothing comes out of any of the other slots either.
Finally he yanks on the coin return lever. His twenty -five cents does not conic. back.
Then he looks up on the mirror on front of this machine and he finds a little sign. In
case of difficulty, write the home office in Des 1!oincs, Iowa. So what does he do. Ile
kicks the goddamned machine, that's what he does. That is what a bell of a lot ofpeople are doing to the American machine, right now. It is in that sense, unre:11011,1% e,
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It seems to me, in that sense, it caps a heck of a lot of frustrations of various groups
which includes the young, the poor, and the black of the United States.
As one makes a close examination of the different parts of that machine, one
finds it is in very bad disrepair. The difficulty I have, however, is in two respects.
First, I am unclear as to y by a special indictment should be made against institutions
of higher education as such. It is not a new discovery and not a difficult discovery that
a university, and educational community, is enormously vulnerable to violence. The
buildings will burn, the files can he destroyed, and there is power in a match. That dis
covery was made very long ago. The possession of power to destroy surely ought not
be confused with some kind of constructive or creative addition. I am a little bit
puzzled, though I can see sonic connection to be sure, requiring introspect at every
institution of higher learning. Why those academies which attempt to use the process
of reason arc themselves made the immediate objects of the most terrific violence
these days in American lives. There is something in the mode of deinonstration which
is so anti- democratic to any probable resolution of dispute that it mildly bothers me.
George Tioyes mildly suggests that there is a new primitiyisin emerging in Ameri-
can lives. It is a primitivism which believes that the heart 13 sounder than the mind,
that feelings are better than reasoning, that the intensity of explosive emotion sonie
how can intrinsically carry its way to a new social structure, singly by being restless
and by demonstrating the capacity for energy. Yet I do not know if that has any
rational basis for working. The random probability' for instance, the random proba-
bility without my describing anything more about the factual situation, suggests that
by lying down in front of a truck, one will do anything other than to stop the truck is
no better than 50% at best. All I am trying to suggest, therefore, is the capacity to
demonstrate, the capacity to stop the machine per se, does not carry beyond that
vision to any resettlement of society. it does carry with it a parable which I do not
believe is properly understood by many who overuse the technique of confrontation
and civil disobedience, frankly for lack of historical prospective.
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It is felt, I believe, that the dramatization of deeply felt grievance to the
techniques of civil disobedience and confrontation can only be on the plus side, that
they advertise and bring to public attention that which would otherwise escape public
attention because the goddamned machine isn't working and the home office is out in
Des Moines, Iowa, where we can't reach it. But there he is at the same time. There is
not at least by an historical reflection, a very commanding peril in the escalation of
this technique. It may indeed sear the public consciousness. It may dramatize the
grievance. It may bring about a meaningful solvenee to problems. It may on the other
hand merely usher in the man on horseback who thrives upon the public appre-
hensions, who thrives upon its animosity and impatience, and then throttles the
society w ith a new arrogance and a new doctrinaire approach and a new rigidity and a
new totalitarian regime which rather than representing any forward movement, may
set its back several decades.
I can't help but feel, as a private matter, that there are now echos of reaction in
American life. This suggests that the immediate future of mass confrontation in the
United States will not produce (lie solar of social solvent. This is hardly the way to an
augmentation of dignity for all Americans.
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TRIBUTE TO LEE 0. GARBERby
William GriffithsUniversity of Massachusetts
I think it is unnecessary to remind this group of the achievements of Dr. Lee 0.
Garber. He was a founding member of NOI.PE, served as Secretary-Treasurer before
the days of the Executive Secretary, and later as President. As users of The Yearbook
of School Law we can appreciate the magnitude and complexity of the task that he
undertakes annually. The task of reading, digesting and, more important. of communi
eating the es:,nce of court decisions is in itself enough to deplete the energies of most
of us, but not Dr. Garber. In countless journal articles, especially in his regular contri
butions to the Nations Schools he cuts through the maze of procedural intricacies,
recognizes the relevant, and communicates the significance and implications of the
law in terms school people can understand. His many books occupy a significant
portion of any school law bibliography. Additionally his sun eys, reports, consultant
ships have heen quite numerous. He has, indeed, gained the ultimate in professional
success.
Those who know him intimately can respect his professional success but admire
Dr. Garber for a still greater success and that is success as a human being. With all of
his achievements and resulting prestige, he remains a humane person, friendly, willing
to help others, warm and courteous in his relationships with all. This is to me the mark
of a great man. On behalf of NOLPF, I take pleasure in making this presentation to
Dr. Lee 0. Garber. The plaque reads: "Honoring Lee 0. Garber for Outstanding Lead-
ership and Service in the Field of School Law. Master Teacher, Distinguished Writer.
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Presented by the National Organization on Legal Problems of Education, 1969."
Dr. Garber: May I have a minute to respond. I hcpe you don't take Bill
seriously. Bill i, the greatest con artist I know. Bill never had a course in School Law.
He was my graduate assistant in 1962 and along about the last of October I had !o go
to the hospital and the Dean said, "Well, what are we going to do with your classes?
None of us know anything about School Law." I said, "Let Bill Griffiths handle it, he
can do it." So Bill used to conic to the house regularly, at least 01 Lel` a week. We would
go over the assignments; he would go back and teach.
1 came out of the hospital in November for about a week and a half and then I
went back in again for an operation and I didn't meet my (lass until the last meeting
of the year. Bill had done it all. He had read all the papers and I opened the grade
book and there was only one student who had straight "A" and who do you suppose
it was?
Bill took his degree with me and I am proud of him. 71 lost of you may not know
him. The last thing Bill said to me, I think before he left town was, "I never knew I
was interested in law, but now I am." And lie said, "I am going to take a degree in law
before I am through." I sort of laughed and said, "Bill, you know you'll never do it
Ile had been a graduate assistant for SI200 for two years and he had almost
starved to death and I didn't see how he was going to finance law school but I knew.
Min well and 1 knew he had enough perserverance and I am happy to tell you tonight
that Bill will get his law degree in May leading his class. Ile has been going to night
school while teaching at the University of Massachusetts. Bill deserves this honor as
much as I do.
Now I want to thank NOLPE for this, I appreciate it more than I can tell you
built a new house when I retired and then Ben Hubbard down there induced Me to
come bark and I have been teaching again. I had to get a new stud), my old one wasn't
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big enough when I built it My wife asked, "V hat are you going to hang on the wall?"
I said, "Wait until I come back from have something. Thank you."
TRIBUTE TO EDWARD C. BOLMEIER
by
H. C. Hudgins, Jr.
Temple University
I wonder first of all, President Joe, if you knew what you were saying when you
made the introductory remark .onight. You referred to both of these men as being
very productive. Those of us who know Dr. Bolmeier know that he has two very
lovely twin daughters. Was this intentional? 1 wonder.
Mr. Justice Joe, and may it please this court, I want to charge here tonight that
one individual, Edward Claude Bohneier, unintentionally' has violated the 14th
Ainendment. Ile has clearly demonstrated that he has denied NOLPFans equal pro-
tection of the law, that he had abridged their privileges and immunities, and he has
given an original, unique interpretation of the due process clause of the 14th Amend.
ment, I prove my case thus.
Through very ink aious organization and judical planning, he timed the first
School Law Conference held at Duke University to coincide with the '51 Brown
decision. As a result of the real interest shown in that conference, in general, and in
that decision in particular it was decided that there should be formed an organization
devoted to the study of law; hence, the formation of NOLPE. No one the would have
thought that such a conference would bring such results.
Ile has served NOI,PE as a member of the Board of Directors, as an advisor to
publications of NOLPE and he served the organization as President. It was here only
ten years ago that he was installed as President and decided that "national" should be
emphasized in the title of the organization by holding the session in Washington, our
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nation's capitol.
Another indictment: he has created a monopoly in the field of publications. If
you looked at the display stand, you noted that since 1964 (five years mind you), he
has either authored or co-authored five books in School Law. One person was observ-
ing while looking over the display, there's nothing else to write about. lie has pre.
empted the field. lie has spawned (here again he is productive) a second generation of
NOLPEans as evidenced by nine of his students here at this conference. One of his
star pupils is serving the organization as President this year.
Ilk fall semester students in 1966 were denied equal protection of the law. It
was always understood that if you wanted to take School Law, take it in the fall
because you were sure to miss one three hour class while he was away at NOI.PE and
then the next class would be wasted because he would give a three hour report on
what transpired at INOLPK. However, at the last minute lie was unable to attend that
session in Boston. I think he contracted a coil at the football game the week before. I
believe that was the year that Duke beat Ohio State.
He has violated the due process clause of the 14th Amendment on two counts.
Procedurally he married Hazel, and this is a very serious indictment. Very few people
who have attended one of his law' conferences at Duke, have been in his class or have
known him otherwise realize that he could not be where he is today without her. In
addition to teaching his classes he would often have the students at the house. There
they were given a royal reception by Mrs. Bolmeier, the hostess who created very
memorable. occasions.
I think is was at some of these sessions that we saw America at its best. Swedish
meatballs, Southern barbecued hushpuppics, Norwegian cookies. I think about every
section of the country was represented on the menu.
To those irf ils who have a special affection for Dr. Bolmeier as well as for
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Mrs. Bolmeier, I think that he is one who exemplifies best the student and scholar of
School Law. He studied the law; he taught it; he respected it; and he lives it. We take
great pleasure in representing the approximately one thousand NOLPEans in thanking
you for all that you have done for the organization and challenge you to keep up the
good work. The plaque reads, "Honoring Edward C. Bolmeier for Outstanding Leader-
ship and Servie. in the Field of School Law: Master Teacher, Distinguished Writer.
Presented by the National Organization on Legal Problems of Education, 1969."
REFLECTIONS
by
Edward C. Bolmeier
and
Lee 0. Garber
Dr. Bolmeier: Ill respond briefly and particularly comment on productivity. I
was reminded at the luncheon today by Lee Garber of an experience I had at the
University of Chicago some years ago. A study was being made on multiple births. I
was fortunate enough to participate in it by giving many tests to twins who were
reared in different foster lomes. It was an interesting study; but the most interesting
fact was that while engaged in it, twins were born to us. Shortly after the Dionne
Quintuplets were born. Then I told Freeman, the study director, "Leave one out of this
one!"
Seriously, I am very grateful to receive this award and particularly from this
group for whom I have had a great deal of affection for many }ears. I have, perhaps
a dozen of m) former students here, whom I respect a great deal. But this man who
made the prtsentation, I think, deserve a special stamp of excellent superiority. H, is
a gentleman is every respect and I was pleased to get this from his hands.
Dr. Bolmeier: Lce, 1 was shocked when I heard Joe say "thirty years ago." I
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feel 1 was just a barefoot boy running around in knee pants thirty years ago and I
don't know if I can get the early part of this development in School Law. Now I am
glad that I have my senior colleague here to fill in this generation gap.
Dr. Garber: I was with the University of Chicago two years before Ed was. I was
not precocious, Ed was just a bit retarded. (Ed is older than I am, I tell you.) Beforel
say anything else, I think there are a few other people who have been pie qccrs in this
field that we ought to think about for just a minute. There is Frederick Welton'. That's
a name most of you don't know. Dr. Weltzin is now Dean, at least he was, unless he is
retired, at the University of Idaho. Dr. Weltzin had one of the first books. It dealt
solely with tort liability. lie tried to ::levilop a philosophy of school law built around
tort liability.
And he there is M. M. Chambers, another name that most of you will not
recognize probably, but some will. Be was a pioneer in this field. M. NI. Chambers
started the yearbooks of School Law in 1933 and did ten of them. Then he went to
the air force. Ile came back to American Council on Education and did not pick up
the project because he didn" have lime.
In 1948, when I was teaching at the University of Maryland in the S. muffler, I
talked to him. Ile suggested that 1 take over the Yearbook of School Law. M. M.
Chambers is now getting up in years. I hope some day you can bring him back on this
program because he is quite a mm. Ike has been retired so many times, I hate to tell
you.
After I retired at the University. of Pennsylvania, Ben Hubbard back there in the
corner inveigled me to teach at Illinois State University. This year M. I. Chambers
joined us; there is no betier man, I think, in the field 9f law that relates to higher
education. He's a little older than even you, Ed.
Then, of course, there as always Madaline Remmlein whom we must never
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forget at meetings of this sort. Well there are three pioneers I thought I would like to
pay tribute to for they helped make School I,aw a respectable subjt a in our curricu-
lum today.
Maybe we had better reminisce for a while. lL.w did you get interested in school
law, Ed?
Dr. Bolmeier: Well, that was a good many years ago. When I went to the
Cuiversity of Chicago I planned to study in the field of school administration. 1 had
some courses that didn't appeal to me a great deal because they weren't really in
administration. I couldn't see the practical value of educational psychology, philos-
ophy and the like. I talked to one of my classmates and said I was afraid I made a
miE take coming here to learn something of a practical value in school administration.
Ile said there is a course that just started and you can get in next semester, Professor
Edwards, in School 'saw. Ile had been teaching it for some years bet he was really
getting into it then because of his book, The Courts and The Public School. So I took
the course in School Law and was enthusiastic right from the beginning not only
because of content but the treatment. We all had to prepare a term paper on a subject
of our own choice. Min! was "The Legality of Administering Corporal Punishment."
That appealed to me, 1 suppose, because when I was a kid 1 deserved a good deal of
that. I thought then it was pretty good. But I can tell you now that honestly all 1 did
was take Edwards' hook, deteriorated the language somewhat, and turned in as my
own. I didn't know that wasn't the proper thing to do.
Ile saw me after class one day and said, "Bolmeier, 1 wish you would come to
my office for a while." Although I thought well now what in the world can that mean.
I was a little afraid of what it might be about. I went to his )ffice. lie lit up his pipe
an took a couple of good puffs. Those who know him know how he did that. When 1
spied my term paper on his desk, my heart sank. I thought ok, I guess this is what they
call plagiarism and he caught it. I was pretty scared. Then 1 thought if I got a hiw grade
on the course it won't he so bad. Ile said, "Sit down Bolmeier. I read your parr o r
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with interest and I think it is very good. If you would permit me, I would like lu have
it published in the Elementary School Journal." I cart tell you how happy I was.
That's when I first burst into print. Later he was instrumental in getting me to work
on the study that was done in Georgia by the political science department on city and
school relationships. I was fortunate enough to work on the legal aspects of that. That
was how I began. How did you ever get started?
Dr. Garber: I went to the University of Chicago as a graduate student in 1929
and took the course with Newton Edwards. Most of you may not know that Newton
Edwards was a top notch scholar of American History.
Ile had taught History of Education in the School of Education although his
rank was in the Department of History. When he got too busy to continue his work in
the School of Education, Edwards taught the course in the llistory of Education, bike
you Ed, I had to take some courses that I didn't care for like philosophy, and
psychology, But in my first year I took the course in History of American Education
and I am telling you I learned more American History in that course than I cer
learned anywhere. Newton Edwards was a real scholar of American History. I liked
him so much as an instructor that I looked in the catalog to see what else he taught.
Next semester I signed up for his "Legal Basis of Education." Now it so happens that I
had done little over two years of law, I had Loped to be a lawyer and was waiting for
that course where they tell you how to start a practice without starving to death for
seven years. They never offered that course in law school so I dropped out of law and
went i; to Education. After taking that course with Newton Edwards, I knew where
my interest lay. I finished there in 1932 in the heart of the depression when you just
couldn't get a job. I had gone to Butler in the fall of 1929 or 1930 and '.)ffcred a
course in School Law. That was the first time I had ever taught. That was MN entrance
into School Law. I had the legal background but never any realization that it applied
to Education.
Dr. IBolmeier: Lee, 1 do think, considering this gruup and our interests, we
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should say something about NOLPE, the organization that is honoring us this evening.
About 1950, the Kellogg Foundation was giving money to institutions to improve the
teaching of school administration. I was fortunate enough to be the representative
from Duke University for that study. After participating at Columbia University I ,r
some time, I tried to think of some project that would help to improve -drool :idinin-
i:Irators. Kellogg funds cc old probably be used to sonic extent. I wanted to have a
regional meeting, dealing with the subject of School Law, legal problems of school
administration. We did get sonic funds and invited several hundred persons to come to
a School Law conference. It really developed into what is now referred to as the Duke,
School Law Conference. We had to pay the traveling expenses for the folks who came,
but we had all the folks in that part of the country who were interested in School
Law. It was in 1934 right along with the Brown decision. At that time sonic thought
Lad been given to an organization to study the field of School Law. Lee, 1 remember
I had done sonic spade work a couple of years before and had sonic information.
Nladaline R"mm!ein realty conceived the idea of an organization. At first, -NC thought
it might he under the umbrella of the NEA, but Hubbard advised us against that. It
was really a small organization. We antic unecd that we were considering an organi
nation. Most of the North Carolina superintendents stay( d around and listened. There
were about sixty persons who wanted to join. The registration fee was SI.00 and I
think that was why there cre so many from North Carolina. After the admission fee
went up the North Carolinians semed to drop out, arid membership cants more frcoi
the richer states, New `.-'ork, New Jersey. Ohio. and Kansas.
We had an interesting start there and before I gil the mike back to Lee, I would
like to t, II about how the school law conference we had there fit in NOLPE. Sonic
folks thought that there would be some jealousy and we'd lie working against each
other. I don't think NOI "E wa harm 'd much by our School Law conference and
feel that our School law conference was successful because we could draw upon
NOLPE. Many NOLPEans participated in the program.
Lee, I am going to mention this because of Dale Gaddy, Joe Owens, and Joe
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REFLECTIONS
Bryson. They didn't know if Van Alstyne would get here for that 2,00 meeting. One
evening we were gc'ng to have Lawrence Derthick who was U. S. Commissioner of
Education, a great man, whom many of you folks know. Dr. Derthick said he would
come by plane that was to arrive about 4:00. This was in June and there was vo
thought of the plane having any trouble. But I got a call from Dr. Derthick in Wash-
ington and he said the plane was late in getting off; go ahead and have dinner and he
would go directly to the auditorium where we were having the meeting. That sounded
all right, but when we got through with dinner there was another cal': the plane still
hadn't got off the ground. Well we waited, and then I was really sweating. Another
call came: the plane isn't going to take off, and he couldn't send his manuscript as
Tom Shannon was trying to do the other day. You can imagine how I felt? The people
were coming from all parts of the country to hear Dr. Derthick. Dr. Eddens, President
of Duke University, was moderating the program that evening and they got Dr. Carroll,
State Superintendent of Public Instruction in Raleigh, out of a sick bed to introduce
Dr. Derthick. I never felt worse in my life, knowing how this was all going to end. Ill
be darned Dr. Eddens got up and welcomed the folks, made a few comments, told a
couple of stories and said and now Dr. Carroll will introduce the speaker. Dr. Carroll
got up and introduced the speaker in absentia. Of course, they were all looking
around for the speaker who wasn't there. To make it still worse after the introduction
Dr. Edden said, "Now Dr. Bolmeier we will turn the meeting over to you." But I
happened to think of something that fit in very well and I am mentioning this to show
how NOLPE came to the rescue. I told about a superintendent, a great speaker, who
had been engaged to speak all over the country but he never wrote his own speeches.
His secretary wrote his speeches and he would get all the credit. His secretary was get
Ling fed up on this and thought I am just going to get even with that man. So the
superintendent started making his speech like he did the other times; it was flamboy
ant, just great, and everyone was just lapping it up. All at once he stopped, flustered
and bewildered. His free got red; he stumbled around and lost his equilibrium. Finally,
he finished his address. Well one of his friends came up afterwards and said, "John,
what in the world happened to you? You were going alongjust famously and then all
of a sudden you seemed to hit a dry spell or a blind spot, what happened'"
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He said, "Look here, I want to show you something." He showed him the manu-
script and all at once there was a page with just these words, "Now, damn you,
improvise." That was really a message for me to improvise, but a thought came to me,
here are all these NOLPEans. I could mention them. In addition to Lee, there was
Gene Lawlor, and Madaline Remmlein and Warren Gnuerke, Ed Fuller, and Ed Reutter.
I was going to say Marty Ware, but I think she was just a little girl in pittails at that
time. We just turned the meeting over and had a church revival, with testimonials. It
turned out to be one of the best sessions we vier had. Do you remember that, Lee?
Dr. Garber: Ed, you forgot to tell them one other thing about that first law
conference.
They were all school administrators and I never saw such a negative group in my
life when it comes to talking about what we should do in the conference on school law.
Do you want to tell them about that, Ed?
Dr. Bolmeier: l don't know if I can talk so v. ell on that but I would like to
me.dion one thing which I thought you were going to bring up. Right after we had our
first conference and after we had the Brown decision, regardless of the topics or
papers that were assigned, they all turned into arguments regarding segregation. So the
next year, the folks would ask me when are you going to have another conference on
segregation. We didn't intend that at all. The next year we had a couple of prominent
speakers. One was Dean Fordham, Dean of the Law School at the University of
Pennsylvania and the other was John Fisher, now President of Teachers College of
Columbia University. They made wonderful presentations, but this was pretty much in
the deep South, but not as deep as some other places. We had one fellow there who
was really from the deep South. After we got through with the whole meeting, which
we thought was pretty good, he lambasted me and the others for the type of program
we had down there, and for bringing this damn Yankee from Philadelphia to interfere
with their way of life (that's the way he put it). He picked on Dean Fordham who
grew up in North Carolina, went to high school, and got his law degree from UNC.
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During the School Law Conference, he commuted to Greensboro, where he stayed
with his mother. We ran into many situations like that.
Dr. Garber. I would like to amplify that a bit. On the last day of the conference,
about one minute to four, the person in charge of that program announced that they
were about rei.dy to adjourn when this fellow jumped up. He identified himself as a
mechanic in the mills and he told us that no one loved the Negroes more than he did.
But, he said if God intended us to associate together he would have made us all the
same color. Then he pointed to Dean Fordham and said, "Where do you come from?"
Dean Fordham said, "North Carolina." He said to John Fisher, "Where are you from?"
John Fisher said, "Baltimore, Maryland."
Dr. Bolmeier: I wsiuld like to come back to N01,PE. Lee and I think a lot of this
organization. We saw it developing and there is one thing that we observed; at the
beginning we had too many school administrators as compared with people from the
law schools and practicing attorneys. I heard the report this morning showing the
large number that we have now from the legal society and I think that is just wonder-
ful. I think that is what makes this organization one of the fine organizations. If it
were up of all school administrators it will just be another adjuct of the NEA or if
it was made up of lawyers only, it wouldn't serve the purpose. I think this is very bane
ficial. But there wasn't that feeling right at the beginning.
Do you remember Lee when they had what they call an advanced seminar in
School Law at Columbia University, Teachers College. Ed Reutter sponsored that
seminar. You and 1, and eight or ten other persons attended. Others who participated
were from various disciplines such as Sociology, Economics, Education, and Law. I
remember one young fellow representing the law school who chided us for trying to
deal with problems in law. He made it quite plain to us that if we had legal problems
we should go to a lawyer.1 responded that the best person to deal with such matters is
someone who had training in both fields, school administration and law. Fortunately
we have a number of such persons: Lee, Madaline Remmlein, Reynolds Seitz, and Walt
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Hetzel. Some of us weren't fortunate enough to get degrees in both fields. But 1 think
those who contributed most tried to bring the problems of education together with
those of law.
Dr. Gather: Ed, I wonder if it's time we ought to get to the topic Upsurge and
Upheaval?
Dr. Bohneier: I feel honortd to be associated with my colleague here, Lee. It's
remarkable to realize what he has done over the past thirty years. He is trying to be
young again; he says twenty years. He has sought every case in School Law that was
heard in a court of re(ord. He studied them, analyzed them, and reported all of them.
I don't think there k any other person in the United States that can claim that. 1 think
I have looked through all of them, but I haven't gone into detail and analyzed them as
he has. Surely during all the scrutinization, study., and analysis over the past twenty
yeirs, Lee, you found some trends t!.at are interesting. I would be pleased to get your
comments.
Dr. Garber: AS I told you, I took over the School Law Yearbook at the request
of M. M. Chambers. Chambers had collaborators, each one doing a different chapter.
But M. M. Chambers said to me, "Don't do that because they won't all come in on
time. If you want to do it, do the whole thing." It was quite an undertaking, but
wasn't too bad.
My first yearbook came out in 1950 covering the year 1919. That year three
cases relating to schools were decided by Federal Courts. In 1951 there were four.
In 1951, the year before the Brown decision there wasn't a single case I didn't locate
through the digest system. Last year in our yearbook we reported seventy-eight or
seventy-nine decisions from Federal Courts. I suppose the trend started with the flag
salute cast; but certainly the Brown ease gave impetus to Federal litigation. Since the
court stressed individual rights in the Brown case, more school law now is in the area
called constitutional law.
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There are rights of pupils to attend school regardless of race and color. :More and
more we are getting cases on the rights of teachers to wear beards and what not By
the way, that was a wonderful address we had this afternoon and I think as you
listened to that you couldn't help but realize this field on constitutional law is
becoming more and more important.
The more I Had in School Law the more I realize that the day of a professor of
School Law who has had one course in School Law and gets his material from
secondary sources is over. We must rely on attorneys. We must have men trained in
law to teach the courses in school law. That's why I am happy to see a man like my,
friend Pill Griffiths. I was scared to death that once he finished law school he would
gu into a law practice. Ile tells me he will stay in the field of administration and will
teach school law. It won't be necessary for all to have the law degree, but they should
get some work in the law school particularly in the field on constit :tional law.
Many of you know Ed Reutter. Before he started teaching school law, he went
to Columbia University Law School. Some of you may not like to hear me say it but
as I read the trends, you must have legal training today to interpret a good share of
the cases coming out of Federal courts. These are a few elynges that I see are taking
place, Ed. Any qutstions you want to ask me?
Dr. Holmeier: Yes, I am interested in the cases that Dr. Van Msty ne referred to
today regarding student rights. As we all know, there is great dissatisfaction on the
part of students. There is militancy, discord, dissent, and rebellion.
Dr. Garber: I am waiting for the first case to come up with respect to high
school fraternities and sororities. Some attorneys believe that pupils are dc1iivcd of
the right of association. 111 bet our next case regarding fraternities and sororities
comes up in the Federal Court as a right of students under the Federal Constitution.
Dr, Bolmeicr: 111 be waiting for that. It will be interesting: but I think it will be
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a good many years.
I am thinking now particularly about student discipline, and I want to refer to
that now since 1 see one of my friends, Dr. Suthers, sitting in the audience.
It was my privilege to visit Dr. Suthers' school in Nel lis County, Florida. It is one
of the ten largest school systems in the United States, an excellent system, with an
excellent staff. Dr. Suthers invited me to speak on student behavior. We dealt with
some of the cases of 1968 and 1969 which Dr. Van Alstyne referred to today. (That
was a very enjoyable session that we had today.) I brought back one story that is quite
appropriate.
There are many who think that we have all this boisterous activity on the part of
students in our high schools and elementary schools because we have been too soft on
our discipline particularly in the homes. Parents have no control over the youngsters
who run rampant and do whatever they wish. I heard of one couple with two boys
who used an awful lot of profanity. It disturbed the parents but they couldn't say
anything without attaching some profane words to their comments. At last the parents
got disturbed enough about it that they went to see an educational psychologist. They
explained that their boys used so much profanity. He said this is no problem at all.
When one of them used profanity, apply corporal punishment. The next morning
when the two boys at down to breakfast with their parents, the mother asked Johnny
what he was going to hate. He said, "Oh, Ill have some of those damn corn flakes."
She dapped him on the mouth and he went reeling and his Dad got up and gave him a
kick in tht seat of the pants and sent him sprawling. Then mother said to the other
boy, "Georgie, what do you want for breakfast?" "Oh, I don't know but I sure as hell
don't want any of those damn corn flakes."
Dr. Garber: Maybe that's a good note to end this program on. Hut I do want to
say one thing. I was more impressed by the program this afternoon, i'.han I have been
by almost any program that has ever been given by NOLPE. I think the quality is
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improving. Ed and 1 are out now; we are just a couple of relics. By the way, that man
Hubbard down there is a great collector of relics. That's why he picked up Chambers
and me. But I say to you, the future is in }our hands. I hope you have more programs
like the one 'his afternoon. It has been a pleasure to be here, to reminisce with you. I
think we have upsurged enough for this evening.
Dr. Bolmeier: Goodnight!
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